PART VII
Of Appeal, Reference and Revision

CHAPTER XXXI
OF APPEALS

No appeal shall lie from any judgment of order on a criminal Court except as provided for by this Code or by any other law for the time being in force.

 

Any person whose application under section 89 for the delivery of property or the proceeds of the sale thereof has been rejected by any Court , may appeal to the Court to which appeals ordinarily lie from the sentences of the former Court.

 

Any person who has been ordered under section 118 to give security for keeping the peace or for good behaviour may appeal against such order to the Court of Session:

Provided that the President of the Union may by notification in the Gazette, direct that in any district specified in the notification appeals from such orders made by a Magistrate other than the District Magistrate shall lie to the District Magistrate and not to tile Court of Session:

Provided further, that nothing in this section shall apply to persons the proceedings against whom are laid before a Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (3A) of section 123.

 

Any person aggrieved by an order made under section 488., directing him to pay maintenance on account of his wife or child, or rejecting an application for maintenance for a wife or child, or by an order made under allowance, may appeal against such order to the Court of Session.

 

(1) Any person convicted on a trial held by any Magistrate of the second or third class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under [sub-section (5) of section]¹ by a Sub-divisional Magistrate of the second class, may appeal to the District Magistrate.

(2) The District Magistrate may direct that any appeal under this section, of any class of such appeals, shall be heard by any Magistrate of the first class subordinate to him and empowered by the President of the Union to hear such appeals and thereupon such appeal or class of appeals may be presented to such subordinate Magistrate, or if already presented to the District Magistrate, may be transferred to such subordinate Magistrate. The District Magistrate may withdraw from such Magistrate any appeal or class or appeals so presented or transferred.

 

Any person convicted on a trial held by an Assistant Sessions Judge a District Magistrate or other Magistrate of the first class, or any person sentenced under section 349 or in respect or whom an order has been made or a sentence has been passed under [sub-section (5) of section 562]¹ by a Magistrate of the first class, may appeal to the Court of Session:

 

An appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge:

[* * *]²

Provided that an Additional Sessions Judge shall hear only such appeals as the President of the Union may by general or special order, direct or as the Sessions Judge of the division may make over to him.

 

Any person convicted on a trial held by a Session Judge, or an Additional Sessions Judge, may appeal to the High Court.

 

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Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted by a Court of Session or any, Magistrate of the first class on such plea, there shall be no appeal except as to the extent of legality of the sentence.

 

Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which a Court of Session passes a sentence of imprisonment not exceeding three months only, or of fine not exceeding two hundred rupees only, or of whipping only, or in which a District Magistrate or other Magistrate of the first class passes a sentence of imprisonment not exceeding one month only, or of fine not exceeding one hundred rupees only.

Explanation. ------- There is no appeal from a sentence of imprisonment passed by such Court of Magistrate in default of payment of fine.

 

Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under section 260 passes a sentence of imprisonment not exceeding one month only, or of fine not exceeding two hundred rupees only.

 

An appeal may be brought against any sentence referred to in section 413 or section 414 by which any two or more of the punishments therein mentioned are combined, but no sentence which would no otherwise be liable to appeal shall be appeal able merely on the ground that the person convicted is ordered to find security to keep the peace

Explanation.----- A sentence of imprisonment in default of payment of fine is riot a sentence by which two or more punishments are combined within the meaning or this section.

 

A Notwithstanding anything contained in this Chapter. when more person than one are convicted in one trial, and an appeal able judgment or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right of appeal.

 

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The President of the Union may direct the Public Prosecutor to present appeal to the High Court from an original or appellate order or acquittal passed by any Court other than the High Court.

 

(1) An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.

(2) Notwithstanding anything contained in sub-section (1) or in Section 423, sub-section (2), when, in the case of a trial by jury, any person is sentenced to death, any other convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as matter of law.

Explanation,---- The alleged severity of a sentence shall, for the purposes of this section, be deemed to be a matter of law.

 

Every appeal shall be made in the form of a petition .in writing presented by the appellant or his pleader, an every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of judgment or order appealed against, and, in cases tried’ by a jury, a copy of the heads of the charge recorded under section 367.

 

If the appellant is in jail, he may present his petition of appeal and the copies accompanying the same to the officer in charge of the jail, who shall thereupon forward such petition and copies to the proper appellate Court.

 

(1) On receiving the petition and copy under section 419 or section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily

Provide that no appeal presented under section 419 shall be dismissed, unless the appellant or his pleader ha3 had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so.

 

If the appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the President of the Union may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal;

and, in case of appeals under section 417, the appellate Court shall cause a like notice to be given to this accused.

 

(1) The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appear, and the Public Prosecutor, if he appears, and in case of an appeal under section 417, the accused if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may ------

(2) Noting herein contained shall authorize the Court to alter reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.

 

The rules contained in Chapter XXVI, as to the judgment of a criminal Court of original jurisdiction, shall apply, so far as may be practicable, to the judgment of any appellate Court other thin the High Court.

Provided that, unless the appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered.

 

(1) Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed If the finding, sentence or order was recorded or passed by a Magistrate other, than the District Magistrate the certificate shall be sent through the District Magistrate.

(2) The Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court, and, if necessary, the record shall be amended in accordance therewith.

 

(1) lending any appeal by convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.

(2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.

(3) When the appellant is ultimately sentenced to imprisonment [* * *]( Note ) or transportation the time during which he is so released shall be excluded in computing the term for which he is so sentence.

 

When an appeal is presented under section 417, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.

 

(1) In dealing with any appeal under this Chapter, the appellate Court, if it thinks additional evidence to be necessary shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the appellate Court is the High Court - by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the appellate Court, and such Court shall thereupon proceed to dispose of the appeal

(3) Unless the appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken but such evidence shall not be taken in the presence of jurors [* *]¹

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry.

 

When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be had before another Judge of the same Court, and such Judge. after such hearing (if any) he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.

 

Judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in section 417 and Chapter XXXII.

 

Every appeal, under section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.

 

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(1) When any person has, in a trial before a Judge or the High Court acting in the exercise of its original criminal jurisdiction, been convicted of an offence, the Judge, if he thinks fit, may reserve and refer for the decision of a Court consisting of two or more Judge of such Court any question of law which has arisen in the course of the trial of such person, and the determination of which would affect the event of the trial.

(2) If the Judge reserves any such question, the person convicted shall, pending the decision thereon, be remanded to jail, or, if the Judge thinks fit be admitted to bail, and the High Court shall have power to review the case or such part of it as may be necessary, and finally determine such question, and thereupon to alter the sentence passed by the Court of original jurisdiction, and to pass such judgment or order as the High Court thinks fit.

 

(1) The High Court or any Sessions Judge or District Magistrate, or any sub-divisional Magistrate empowered by the President of the Union in this behalf, may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose .of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation, All Magistrate, [except the District Magistrate]1 , whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Session Judge for the purposes of this sub-section and of section 437.

(2) If any Sub-divisional Magistrate acting under sub-section (1) considers that any such finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate.

(3) * * * *

(4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.

 

On examining any record under section 435 or otherwise, the High Court or the Session Judge may direct the District Magistrate by himself or by any’ of the Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged;

Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.

 

When, on examining the record of any case under section 435 or otherwise, the Session Judge District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court, the Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been. in the opinion of the Session Judge or District Magistrate, improperly discharged:

Provided as follows:------

(a) that the accused has had an opportunity of showing cause to such Judge or Magistrate why the commitment should not be made

(b) that, if such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judged or Magistrate may direct the inferior Court to inquire into such offence.

 

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(1) In the case of any proceeding the record of which has been called for by itself [****]¹ or which otherwise comes to its knowledge, the High Court, the State or Divisional Court3 may, in its discretion, exercise any of the Power conferred on a Court of Appeal by sections 423. 426, 427 an 428 or on a Court by section 338, and may enhance the sentence; and when the Judge composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided section 429.

²(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard, either personally or by pleader.

(3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than night have been inflicted for such offence by a Magistrate of the first class.

(4) Nothing in this section applies to an entry made under section 273, or shall be deemed to authorize the High Court, the State or Divisional court3 to convert a finding of acquittal into’ one of conviction.

(5) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

 

No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision;

Provided that the Court may. if it thinks fit, when exercising such power, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect section 439, sub-section (2).

 

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When a case is revised under this Chapter by the High Court, the Stat or Divisional Courts, it shall in manner herein before provided by section 425, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed, and the Court or Magistrate to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified and, if necessary, the record shall be amended in accordance therewith.

 

PART VIII
Special Proceedings

CHAPTER XXXIII

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(1) When a Magistrate holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defense, the Magistrate shall inquire into the fact of such unsoundness and shall cause such person to be examined by the Civil Surgeon of the district or such other medical officer as the President of the Union directs, and thereupon shall examine such suction or officer as witness, and shall reduce the examination to writing.

(1A) Pending such examination and inquiry, the Magistrate may deal .With the accused in accordance with the provisions or section 466.

(2) If such Magistrate is of opinion that the accused is of unsound mind and consequently incapable of making his defense he shall record a finding to that effect and shall postpone further proceedings in the case

 

(1) If any person committed for trial before a Court of Session or the High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defense, the jury, or the Court [* * ]¹ shall, in the first instance, try the fact of such unsoundness and incapacity and if the jury or Court, as the case may be, is satisfied of the fact the Judge shall record a finding to that effect and shall postpone further proceedings in the case and the jury, if any shall be discharged.

(2) The trial of the fact of the unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the Court.

 

(I) Whenever an accused person is found to be of unsound mind and incapable of making his defense, the Magistrate or Court as the case may be, whether the case is one in which bail may be taken or not, may release him on sufficient security being given that he shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, and for his appearance when required before the Magistrate or Court or such officer as the Magistrate or Court appoints in this behalf.

(2) If the case is one in which, in the opinion of the Magistrate or Court, bail should not be taken, or if sufficient security is not given, the Magistrate or Court, as the case may be, shall order the accused to be detained in safe custody in such place and manner as he or it may think fit, and shall report the action taken to the President of the Union;

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as the President of the Union may have made under the Lunacy Act.

 

(1) Whenever an inquiry or a trial is postponed under section 464 or section 465, the Magistrate or Court, as the case may be, may at any time resume the inquiry or trial, and require the accused to appear or be brought before such Magistrate or Court.

(2) When the accused has been released under section 466, and the sureties for his appearance produce him to the officer whom the Magistrate or Court, appoints in this behalf, the certificate of such officer that the accused is capable of making his defense shall be receivable in evidence.

 

(1) If, when the accused appears or is again brought before the Magistrate or the Court as the case may be, the Magistrate or Court considers him capable of making his defense, the inquiry or trial shall proceed.

(2) If the Magistrate or Court considers the accused to be still incapable of making his defense, the Magistrate or Court shall again act according to the provisions of section 464 or section 465. as the case may be, and if the accused is found to be of unsound mind and incapable of making his defense, shall deal with such accused in accordance with the provisions of section 466.

 

When the accused appears to be of sound mind at the time of inquiry’ or trial, and the Magistrate is satisfied from the evidence given before him that there is reason to believe that the accused committed an act which, ii he had been of sound mind, would have been an offence, and that he was, at the time when the act was committed, by’ reason of unsoundness of mind, incapable of knowing the nature of the act or that it was wrong or contrary to law. the Magistrate shall proceed with the case, and, if the accused ought to h~ committed to the Court of Session or High Court, send him for trial before the Court of Session or High Court as the case may be.

 

Whenever any person is acquitted upon the ground that - at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not.

 

(1) Whenever the finding states that the accused person committed the act alleged, the Magistrate or Court before whom or which the trial has been held, shall, if such act would, but for the incapacity found, have constituted an offence, order such person to be detained in safe custody in such place and manner as the Magistrate or Court thinks fit, and shall report the action taken to the President of the Union

Provided that no order for the detention of the accused in lunatic asylum shall be made otherwise than in accordance with such rules as the President of The Union may have mode under the Lunacy Act.

(2) The President of the Union may empower the officer in charge of the jail in which a person is confined under the provisions of section 466 or this section to discharge all or any of the functions of the Inspector-General of Prison under section .473 or section 474.

 

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If such person is detained tinder the provisions of section 466, and in the case of a person detained in a jail, the Inspector-General of Prisons, or, in the case of a person detained in a lunatic asylum, the visitors of such asylum or any two of them, shall certify that, in his or their opinion such person is capable of making his defense, he shall be taken before the Magistrate or Court. as the case may be, at such time as the Magistrate or Court appoints, and the Magistrate or Court shall deal with such person under the provisions of section 468 and the certificate of such Inspector-General or visitors as aforesaid shall be receivable as evidence

 

(1) If such person is detained under the provisions or section 466 or section 471 and such Inspector-General or visitors shall certify that, in his or their judgment, he may be released without danger of his doing injury to himself or to any other person. the President of the Union may thereupon order him to be released or to be detained in custody, or to be transferred to a public lunatic asylum if he has not been already sent to such an asylum and, in case he orders him to transferred to an asylum. may appoint a Commission, consisting of a judicial and two medical officers.

(2) Such Commission shall make formal inquiry’ into the state of mind of scab person. taking such evidence as is necessary, and shah report to the President of the Union who may order his release or detention as ho thinks

 

(1) Whenever any relative or friend of any person detained under the provisions of section 4a6 or section 471 desires that he shall be delivered to his care and custody, the President of the Union may¹, upon the application of such relative or friend and on his giving security to the satisfaction of the President of the Union that the person delivered shall ----

(2) If the person so delivered is accused of any offence the trial of which has been postponed by reason of his being of unsound mind and incapable of making his defense, and the inspecting officer referred to in subsection (1), clause (b), certifies at any time to the Magistrate or Court that such person is capable of making his defense, such Magistrate or Court shall call upon the relative or friend to whom such accused was delivered to produce him before the Magistrate or Court and, upon such production, the Magistrate or Court shall proceed in accordance with the provisions of section 468. and the certification the inspecting officer shall be receivable as evidence.

 

(1) When any civil, revenue or criminal Court is whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195. sub-section (1). clause (b) or clause (z) which appears to have been committed in or in relation to a proceeding in that Court such Court may after such preliminary’ inquiry, if any. as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bail able may, if it thinks necessary so to do, send the accused in custody -to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate;

Provided that, where the Court making the complaint is the High Court the complaint may be signed by such officer of the Court as the Court may appoint.

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200.

(3) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided,

 

The power conferred on civil, revenue and criminal Courts by section 476. sub-section (1), may be exercised, in respect of any offence referred to therein and alleged to have been committed in or in relation to any proceeding in any such Court, by the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3). in may case in which such former Court has neither made a complaint under Section 476 in respect of such offence nor rejected an application for the making of such complaint and, where the superior Court makes such complaint, the precisions of section 476 shall apply accordingly.

 

Any person on whose application any civil, revenue or criminal Court has refused to make a complaint under section 476 or section 476A. or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3), and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint at or as the-case may be itself make the complaint which the subordinate Count might have made under section 476, and if it makes such complaint the provisions of that section shall apply accordingly.

 

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(1) When any such offence is committed before any civil or revenue Court, or brought under the notice of any civil or revenue Court in the course of a judicial proceeding, and the case is triable exclusively by the High Court or Court of Session, or such civil or revenue Court thinks that it ought to be tried by the High Court or Court of Session, such civil or revenue Court may, instead of sending the case under section 476 to a Magistrate for inquiry, itself complete the inquiry, and commit or hold to bail the accused person to take his trail before the High Court or Court of Session, as the case may be

(2) For the purposes of an inquiry under this section the civil or revenue Court may exercise all the powers of a Magistrate; and its proceedings in such inquiry shall be conducted as nearly as may be in accordance with the provisions of Chapter XVIII (**** *)¹ and shall be deemed to have been held by a Magistrate.

 

When any such commitment is made by a civil or revenue Court, the Court shall send the charge with the order of commitment and the record of the case to the District Magistrate or other Magistrate authorized to commit for trial, and such Magistrate shall bring the case before the High Court or Court of Session, as the case may be, together with the witnesses for the prosecution and defense.

 

(1) When any such offence as is described in section 175, section 178, section 179, section 180 or section 288 of the Penal Code is committed in the view or presence of any civil, criminal or revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may if it thinks fit, take cognized of the offence and sentence the offender to fine not exceeding two hundred rupees and, in default of payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid.

¹(2) * * * *

 

(1) In ever such case the Court shall record the facts constituting the offence, with the statement (if any) made by the offender, as well as the finding and sentence.

(2) If the offence is under section 228 of Penal Code the record shall show the nature and stage of the judicial proceeding in which the Court interrupted or insulted was sitting, and the nature of the interruption or insult.

 

(1) If the Court in any case considers that a person accused of any of the offences referred to in section480 and committed in its view of presence should be imprisoned otherwise than in default of payment of fine, or that a fine exceeding two hundred rupees should be imposed upon him, or such Court is for man other reason of opinion that the case should not be disposed of under section 480, such Court, after recording the facts constituting the offence and the statement of the accused as hereinbefore provided, may forward the case to a Magistrate having jurisdiction to try the same, and may require security to be given for the appearance of such accused person before such Magistrate, or if sufficient security is not given, shall forward such person in custody to such Magistrate.

(2) The Magistrate to whom any case is forwarded under this section shall proceed to hear the complaint against the accused person in manner hereinbefore provided.

 

When the President of the Union so directs, any Registrar or any Sub - Registrar appointed under the Registration Act shall be deemed to be a civil Court within the meaning of sections 480 and 482.

 

When any Court has under section 480 or section 482 adjudged an offender to punishment or forwarded him to a Magistrate for trial for, refusing or omitting to do anything which he was lawfully required to do or for any intentional insult of interruption, the Court may, in its discretion, discharge the offender or remit the punishment on his submission to the order or requisition of such Court, or on apology being made to its satisfaction.

 

If any witness or person called to produce a document or thing before a criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment. or by warrant under the hand of the presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven day’s unless in the meantime such person consents to be examined and to answer or to produce the document or thing. In the event of his persisting in his refusal, he may be dealt with according to the provisions of section 480 or section 482, and, in the ease of the High Court, shall be deemed guilty of a contempt.

 

(1) Any person sentenced by any Court under section 480 or section 485 may notwithstanding anything hereinbefore contained, appeal to the Court to which decrees or orders made in such Court are ordinarily appeal able.

(2) The provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals under this section, and the appellate Court may alter or reverse the finding, or reduce or reverse the sentence appealed against.

(3) An appeal from such conviction by (the Rangoon City Civil Court) shall lie to the High Court, and.

an appeal from such conviction by any other Court of small Causes shall lie to the Court of Session for the sessions division within which such Court is situate.

(4) An appeal from such conviction by any officer as Registrar or Sub- Registrar appointed as aforesaid may. when such officer is also judge of a civil Court be made to the Court to which it would, under the preceding portion of this section, be made if such conviction were a decree by such officer in his capacity as such Judge, and in other cases may be made to the District Judge.

 

(1) Except as provided in section 480 and 485. no Judge of a criminal Court or Magistrate, oilier than a Judge of the High Court, shall try any person for any offence referred to in section 1 95, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.

(2) Nothing in section 476 or section 482 shall prevent a Magistrate empowered to commit to the Court of Session or High Court from himself committing any case to such Court.

 

(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the district Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof or such neglect or refusal, order such person to make a monthly allowance for the maintenance or his wife or such child, at such monthly rate, not exceeding one hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and any may make an order under this section notwithstanding such offer if he is satisfied that there is just ground for so doing :

Provided further, that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

(6) All evidence under this Chapter Shall be taken in the presence of the husband or father, as the case may be or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases :

Provided that, if the Magistrate is satisfied that he is willfully avoiding service, or willfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex part. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof

(7) The Court in dealing with applications under this section shall nave power to make such order as to costs as may be just.

(8) Proceedings under this section may be taken against any person in any district where he resides or is. or where he last resided with his wife, or. as the case may be, the mother of the illegitimate child.

 

(1) On proof of a change in the circumstances of any person receiving under section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit Provided that if he increases the allowance the monthly rate of one hundred rupees in the whole be not exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

 

A copy of the order of maintenance shall be give without payment to the person in whose favor it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the nom-payment of the allowance due.

 

(1) The High Court may, whenever it thinks fit, direct----

(2) The High Court may, from time to time, frame rules¹ to regulate the procedure in cases under this section.

(3) Nothing in this section applies to person detained under the State Prisoners Regulation.

 

*        *      *        * ( Note )

 

PART IX
Supplementary Provisions

CHAPTER XXXVIII
OF THE PUBLIC PROSECUTOR

(1) The President of the Union (or such officer or authority as may be specified by him in this behalf) may appoint, generally, or in any ~ case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.

(2) The Distinct Magistrate or subject to the control of the District Magistrate the Sub-divisional Magistrate may in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below such rank as the President of the Union may prescribe in this behalf to be Public Prosecutor for the purpose of any case

 

The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein under his directions.

 

Any Public Prosecutor may with the consent of the Court in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any per either generally or in respect of any one or more of the offences for which he is tried and upon such withdrawal,

(1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person other than an officer of police below the rank to be prescribed by the President of the Union in this behalf, but no person, other than the Attorney-General, Public Prosecutor or other officer generally or specially empowered by the President of the Union in this behalf shall be entitled to do so without such permission.

(2) Any such officer shall have the like power of withdrawing from the prosecution as is provided by section 494 and the provisions of that section shall apply to any withdrawal by such officer.

(3) Any person conducting the prosecution may do so personally or by a pleader.

(4) An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.

 

 CHAPTER XXXIX
OF BAIL

When any person other than a person accused of a non-bail able offence is arrested or detained without warrant by an officer in charge of a police - station or by an investigating officer not below the rank of head constable. or appears or is brought before a Court, and is prepared at any time while in the custody or such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail Provided that such officer or Court. if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided;

Provided further, that nothing in this section shall be deemed to affect the provisions of section 107, sub-section (4), or section 117, sub-section (3).

 

(1) When any person accused of any non-bail able offence is arrested or detained without warrant by an officer in charge of a police-station, or appears or is brought before the Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or with transportation for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such offence be released on bail.

(2) Wit appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bail able offence, but that there are sufficient ground, for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court. on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) An officer or a Court releasing any person on bail under subsection (I) or sub-section (2) shall record in writing his or its reasons for so doing.

(4) If at any time after the conclusion of the trial of a person accused of a non-bail able offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty’ of any such offence, it shall release the accused. if he is in custody, on the execution by him of a bond without sureties for his appearance to here judgment delivered.

(5) The High Court or Court of Session and, in the case or a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.

 

(1) The High Court or Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the required by a police officer or Magistrate be reduced.

(2) The amount of every bond executed under this Chapter shall’ having due regard to the circumstances of the case, not be excessive.

¹Provided that no person shall be admitted to bail under this section, unless the Attorney-General of the District Magistrate, as the case may be, has had an opportunity of being heard.

 

(1) Before any person is released on bail Or released on his own bond, a bond for such sum of money as the police-officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sure tied conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police-officer or Court, as the case may be.

(2) If the case so require the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

 

(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him.

(2) Nothing in this section. section 496 or section 497 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

 

If. through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterward become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do may commit him to jail.

 

(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so may commit him to custody.

 

(1) Whenever, in the course of an inquiry, a trial or any other, proceeding under this Code, it appears to a District Magistrate, a Court of session or the High Court that the examination of a witness in necessary for the ends of justice, and that the attendance of such witness cannot be procure without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, such Magistrate or Court may dispense with such attendance and may issue a commission to any District Magistrate or Magistrate of the first class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness.

¹(2) * * * *

²(2A) * * * *

(3) The Magistrate [* *]( Note ) to whom the commission is issued, or if he is the District Magistrate, he or such Magistrate or the first class as he appoints in this behalf, shall proceed to the place where the witness is or shall summon the witness before him, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials of warrant-cases under this Code

³(4) If the witness is in a country or place outside the Union of Burma and arrangements have been made by the Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission, as the Government may. by notification. prescribe in this behalf.

 

*        *      *        *

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the Magistrate or Court directing the commission may think relevant to the issue, and the Magistrate [* *]² to whom the commission is directed, or to whom the duty of executing such commission has been delegated, shall examine the witness upon such interrogatories.

(2) Any such party may appear before such Magistrate [* *]² by pleader, or if not custody in person, and may examine, cross-examine and reexamine (as the case may be) the said witness.

 

Whenever, in the course of an inquiry or a trail or any other proceeding under this Code before any Magistrate other than a District Magistrate it appears that a commission ought to be issued for the examination of a witness whose evidence is necessary for the ends of justice, and that the attendance of such witness cannot be procured without and amount of delay, expanse or inconvenience which, under the circumstances of the case, would be unreasonable, such Magistrate shall apply to the District Magistrate, stating the reasons for the application and the District Magistrate may either issue a commission in the manner hereinbefore provided or reject the application.

 

(1) After any commission issued under section 503 or section 506 has been duly executed, it shall be returned, together with the deposition or the witness examined there under, to the Court out or which it issued and the commission, the return thereto and the deposition shall be open at all reasonable times to inspection of the parties and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.

(2) Any deposition so taken, if it satisfies the conditions prescribed by section 33 of the Evidence Act, may also be received in evidence at any subsequent stag of the case before another Court.

 

In every case in which a commission is issued under section 503 or section 506, the inquiry, trial or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

 

The provisions of sub-section (3) of section 503 and so much of sections 505 and 507 as relates to the execution of a commission and its return by the Magistrate to whom the commission is directed shall apply in respect of commissions issued by any Court, Judge or Magistrate exercising jurisdiction in any such country or place outside the Union of Burma as the Government may, by notification, specify in this behalf, and having authority under the law in force in that country or place to issue commissions for the examination of witnesses in relation to criminal matters, as they apply to commissions issued under sub-section (1) of section 503 or section 506.

 

(1) The deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, ‘or taken on commission under Chapter XL, may be given in evidence in any inquiry trial or other proceeding under this Code, although the deponent is not called as a witness.

(2) The Court may. if it thinks fit, summon and examine such deponent as to the subject-matter of his deposition.

 

Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government. upon any matter or thing duly submitted to him for examination or analysis and report in the courts of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

 

In any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal maybe proved, in addition to any other mode provided by any law for the time being in force

together with, in each of such cases, evidence as to the identity of the accused person with the person so convicted or acquitted.

 

(1) Wit is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their depositions. Any such deposition may on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances or the case, would be unreasonable.

(2) If it appears that an offence punishable with death or transportation has been committed by some person or persons unknown the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of the Union of Burma.

 

When any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behavior, permit him to deposit a sum of money or Government Promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond.

 

(1) Whenever it is proved to the satisfaction of the Court by’ which a bond under this Code has been taken, or of the Court of a Magistrate of the first class, or when the bond is for appearance before a Court to the satisfaction of such Court. that such bond has been forfeited, the Court, shall record the ground of such proof and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead.

(3) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of any moveable property belonging to such person without such limits, when endorsed by the District Magistrate within the local limits of whose jurisdiction such property is found.

(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.

(5) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.

(6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(7) When any person who has furnished security under section 106 or section 118 or section 562 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 514 B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceeding under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

 

When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 514, the Court by whose order such bond was taken, or a Magistrate of the first class. may order the person from whom such security was demanded to furnish fresh security in accordance with directions of the original order and. if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.

 

When the person required by any Court or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond execute by a surety or sureties only.

 

All orders passed under section 514 by any Magistrate other than a District Magistrate shall be appeal able to the District Magistrate, or, if not so appealed may be revised by him.

 

The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond to appear and attend at such High Court or Court of Session.

 

When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

 

(1) When an inquiry or a trial in any criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof’, or otherwise, of any property or document produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence.

(2) When High Court or a Court of Session makes such order and cannot through its own officers conveniently deliver the property to the person entitled thereto, such Court may direct that the order be carried into effect by the District Magistrate.

(3) When an order is made under this section such order shall not except where the property is livestock or subject to speedy and natural decay and save as provided by sub-section (4), be carried out for one month or when an appeal is presented, until such appeal has been disposed of.

(4) Nothing in this section shall be deemed to prohibit any Court from delivering any property under the provisions of sub - section (1) to any person claiming to be entitled to the possession thereof, on his executing a bond with or without sureties to the satisfaction of the Court, engaging to restore such property to the Court if the order made under this section is modified or set aside on appeal.

Explanation.-- In the section the term "property" includes in the case of property regarding which an offence appears to have been committed not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

 

In lieu of itself passing an order under section 517, the Court may direct the property to be delivered to the District Magistrate or to a Sub-divisional Magistrate, who shall in such cases deal with it as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned

 

When any person is convicted of any offence which includes or amounts to theft or receiving stolen property, and it is proved that any other person has bought the stolen property from him without knowing, or having reason to believe, that the same was stolen, and that any money has on his arrest been taken out of the possession of the convicted person, the Court may, on the application of such purchaser and on the restitution the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him.

 

Any Court of appeal, confirmation, reference or revision may direct any order under section 517, section 518 or section 519, passed by a Court subordinate thereto, to be stayed pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just.

 

(1) On a conviction under the Penal Code, section 292, section 293, section 501 or section 502, the Court may order the destruction of all the copies of the thing in respect of which the conviction was had, and which are in the custody of the Court or remain in the possession or power of the person convicted.

(2) The Court may, in like manner, on a conviction under the Penal Code, section 272, section 273, section 274 or section 275, order the food, drink, drug or medical preparation in respect of which the conviction was had to be destroyed.

 

(1) Whenever a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation and it appears to the Court that by such force or show of force or criminal intimidation any person has been dispossessed of any immoveable property the Court may, if it thinks fit, when convicting such person or at any time within one month from the date of the conviction, order the person dispossessed to be restored to the possession of the same.

(2) No such order shall prejudice any right or interest to or in such improvable property which any person may be able to establish in a civil suit.

(3) An order under this section may be made by any Court of appeal confirmation reference or revision.

 

(1) The seizure by any police officer of property taken under section 51 or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property:

Provided that any police - officer, who has made a seizure of cattle paddy or rice or of a boat or any other bulky article, may, pending the order of, the Magistrate, deliver such cattle or article to any person who may appear to be entitled to the possession of such cattle or article on his executing a bond with or without sureties, to return or produce such cattle or article at a police station whenever required.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall in such case issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto to appear before him and establish his claim within six months from the date of such proclamation.

 

(1) If no person within such period establishes his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, such property shall be at the disposal of the Government, and may be sold under the orders of the District Magistrate or Sub - divisional Magistrate or of a Magistrate of the first class empowered by the President of the Union in this behalf.

(2) In the case of every order passed under this section. an appeal shall lie to the Court to which appeals against sentences of the Court passing such order would lie.

 

If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such property is less than ten rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 523 and 524 shall, as nearly as may be practicable, apple to the net proceeds of such sale.

 

(1) Whenever it is made to appear to the High Court : -

(2) When the High Court withdraws for trial before itself any case from any Court it shall, except as provided in section 267, observe in such trial the same procedure which that Court would have observed if the case had not been so withdrawn.

(3) The High Court may act either on the report of the lower court, or on the application of a party interested, or on its own initiative.

(4) Every application for the exercise of the power conferred by this section shall be made by motion, which shall, except when the applicant is the Attorney-General, be supported by affidavit or affirmation.

(5) When an accused person makes an application under this section, the High court may direct him to execute a bond, with or without sureties, conditioned that he will, if so ordered, pay any amount which the High Court may under this section award by way of compensation to the person opposing the application.

(6) Every accused person making any such application shall give to the public prosecutor notice in writing of the application, together with a copy of the grounds on which it is made: and no order shall be made on the merits of the application unless at least twenty - four hours have elapsed between the giving of such notice and the hearing of the application.

(6A) Where any application for the exercise of the power conferred by this section is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding two hundred and fifty rupees as it may consider proper in the circumstances of the case.

(7) Nothing in this section shall be deemed to affect any order made under section 197.

¹(8)--- (10) * * * *

 

*        *      *        * ( Note )

 

(1) The President of the Union may by notification in the Gazette, direct the transfer of any particular case or appeal from one High Court to another High Court, or from any criminal Court subordinate to one High Court to any other criminal Court of equal or superior jurisdiction subordinate to another High Court, whenever it appears to him that such transfer will promote the ends of justice, or tend to the general convenience of parties or witnesses.

Explanation. --In this sub section "High Court" means the (high Court.)2 and includes the highest Court of criminal appeal or revision in any local area which is not included within the limits of the appellate criminal jurisdiction of the High Court.

(2) The Court to which such case or appeal is transferred shall deal with the same as if it had been originally instituted in, or presented to such Court

 

(1) Any Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Assistant Sessions Judge subordinate to him.

(2) Any District Magistrate or Sub-divisional Magistrate may withdraw any case from, or recall any case which he has made over to. any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into try the same.

(3) The President of the Union may authorize the District Magistrate to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper, or particular classes of cases.

(4) Any Magistrate may recall any case made over by him under section 192, sub - section (2), to any other Magistrate and may inquire into or try such case himself.

(5) A Magistrate making an order under this section shall record in writing his reasons for making the same.

 

*        *      *        *

 

If any Magistrate not empowered by law to do any of the following things, namely:

erroneously in good faith does that thing, his proceedings shall not be ~et aside merely on the ground of his not being so empowered.

 

If any Magistrate, not being empowered by law in this behalf does any of the following things, namely:--

his proceedings shall be void.

 

No finding, sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

 

If any Magistrate or other authority purporting to exercise Powers duly conferred, which were not so conferred, commits an accused person for trial before a Court of Session or High Court, the Court to which the commitment is made may, after perusal of the proceedings, accept the commitment if it considers that the accused has not been injured thereby, unless during the inquiry and before the order of commitment objection was made on behalf either of the accused or of the prosecution to the jurisdiction of such Magistrate or other authority.

(2). If such Court considers that the accused was injured, or if such objection was so made, it shall quash the commitment and direct as fresh inquiry by a competent Magistrate.

 

(1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds taht any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Evidence Act, section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.

(2) The provisions of this section apply to Court of appeal, reference and revision.

 

*      *      *        *

 

(1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge.

 

If an offence triable by a jury is tried without a jury the trial shall not on that ground only be invalid unless the objection is taken before the Court records its finding.

 

Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account –

Explanation------- In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of Justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

 

No attachment made under this Code shall be deemed unlawful, nor shall any person making the same be deemed a trespasser, on account of any defect or want of form in the summons, conviction, writ of attachment or other proceeding relating thereto.

 

Affidavits and affirmations to be used before the High Court or any officer of such Court may be sworn and affirmed before such Court or the Clerk of the Court or any Commissioner or other person appointed by such Court for that purpose, or any Judge, or any Commissioner for taking affidavits in any Court of Record in the Union of Burma, or any Commissioner to administer oaths in England or Ireland, or any Magistrate authorized to take affidavits or affirmations in Scotland.

 

(1) When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servant, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court may, if it thinks fit, order that evidence relating to such facts be so given.

An affidavits to be used before any Court other the High Court under this section may be sworn or affirmed in the manner prescribed in section 539, or before any Magistrate.

Affidavits under this section shall be confined to, and shall state separately, such facts as the deponent is able to prove from his own knowledge and such facts as he has reasonable grounds to believe to be true, and, in the latter case, the deponent shall clearly statel88 the grounds of such belief.

(2) The Court may order any scandalous and irrelevant matter in ~ affidavit to be struck out or amended.

 

(1) Any Judge or Magistrate may, at any stage of any inquiry trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at sicj omqiory or trial, and shall without unnecessary delay record a memorandum of any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost;

Provided that, in the case of a trial by jury [* * * *]¹ ,the Judge shall not act under this section unless such jury [* *]¹ , are also allowed a view under section 293.

 

Any Court may. at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and reexamine or recall and reexamine any such person if his evidence appears to it essential to the just decision of the case.

 

(1) At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

 

(1) Unless when otherwise provided by any law for the time being in force, the President of the Union may direct in what place any person liable to be imprisoned or committed to custody under this Code shall be confined.

(2) If any person liable to be imprisoned or committed to custody under this Code is in confinement in a civil jail, the Court or Magistrate ordering the imprisonment or committal may direct that the person be removed to a criminal jail.

(3) When a person is removed to a criminal jail under sub-section (2), he shall on being released there from, be sent back to the civil jail unless either ---

 

*     *     *       *

 

When the services of an interpreter are required by any criminal Court for the interpretation of any evidence or statement, he shall be bound to state true interpretation of such evidence or statement.

 

Subject to any rulers made by the President of the Union, any criminal Court may, if it thinks fit, order payment on the part of Government of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code.

 

(1) Whenever under any law in force for the time being a criminal Court imposes a fine or confirms in appeal, revision or otherwise a sentence of fine, or sentence or which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be app lied.

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

 

At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under section 545.

 

(1) Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts the accused, may, in addition to the penalty imposed upon him order him to pay to the complainant ----

and may further order that, indefinable of payment, the accused shall
suffer simple imprisonment for a period not exceeding thirty days.

(2) An order under this section may also be made by an appellate Court or by the High Court when exercising its powers of revision.

 

Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided, for shall be recoverable as if it were a fine.

If any person affected by a judgment or order passed by a criminal Court desires to have a copy of the Judge’s charge to the Jury or of any order or deposition or other part of the record he shall, on a applying for. such copy, be furnished therewith;

Provided that he pays for the same unless the Court, for some special reason, thinks fit to furnish it free of cost.

 

(1) The President of the Union may make rules consistent with this Code and the Army, Act, the Naval discipline Act [ * * *]( Note ) and the Air Force Act and any similar law for the time being in force law shall be tried by a Court to which person subject to military, naval or air force law shall be tried by a Court to which this Code applies or by Court-martial, and when any person is brought before a Magistrate and charge with an offence for which he is liable to be tried either by a Court to which this Code applies or by a Court-martial, such Magistrate shall have regard to the offence of which he is accused, to the commanding officer of the regiment, corps, ship or detachment, to which he belongs, or to the commanding officer of the nearest military, naval or air-force station, as the case may be for the purpose of being tried by Court-martial.

(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.

 

Any police-officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Such police-officer, if subordinate to the officer in charge of a police-station, shall forthwith report the seizure to that officer.

 

Police-officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.

 

Upon complaint made on oath to a District Magistrate of the abduction or unlawful detention of a woman, or of a child under the age of sixteen years, for any unlawful purpose, the District Magistrate may, after such inquiry into the truth of the complaint as he may consider necessary make an order for the immediate restoration of such woman to her liberty, or of such child to his parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.

 

*     *     *       *

 

(1) With the previous sanction of the President of the Union, the High Court may make rules for the inspection of subordinate Courts.

(2) * * * * *

(3) All rules made under this section shall be published in the Gazette.

 

Subject to the power conferred by section 554, [ * * * *]² the forms set forth in the fifth schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.

 

No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.

Explanation.---- A Judge or Magistrate shall not be deemed a party, or personally interested. within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein ma public capacity or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.

Illustration

A, as Collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise laws. A is disqualified from trying this case as a Magistrate.

 

No p reader who practices in the Court of any Magistrate shall sit as a Magistrate in such Court or in any Court within the jurisdiction of such Court.

 

The President of the Union may determine what, for the purposes of this Code, shall be deemed to be the language of each Court other than the High Court.

 

(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office.

(2) When there is any doubt as to who is the successor in office of any Magistrate the District Magistrate shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order there under, be deemed to be the successor in office of such Magistrate.

(3) When there is any doubt as to who is the successor in office of any Additional or Assistant Session Judge. the Sessions Judge shall determine by order in writing the Judge who shall, for the purpose of this Code or of any proceeding or order there under, be deemed to be the successor in office or such Additional or Assistant Sessions Judge.

 

A Public servant having any duty to perform in connection with the sale of any property under this Code shall not purchase or bid for the property.

 

(1) Notwithstanding anything in this code, no Magistrate except a District Magistrate shall -----

(2) And, notwithstanding anything in this Code, if a District Magistrate deems it necessary to direct an investigation by a police-officer with respect to such an offence as is referred to in sub-section (1), no police-officer of a rank below that of police-inspector shall be employed either to make, or to take part in. the investigation.

 

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court otherwise to secure the ends of justice.

 

First offenders

(1) When any person not under twenty-one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the Court before which, he is convicted, regard being had to the age, character of antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period ( not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour.

Provided that, where any first offender is convicted by a Magistrate of the third class, or a Magistrate of the second class not specially empowered by the President of the Union in this behalf, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceeding to a Magistrate of the first class or Sub-divisional Magistrate, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in manner provided by [sub-section (5)]¹

(1 A) In any case in which a person is convicted of [theft, theft in a building, theft by a clerk or servant, dishonest misappropriation, criminal breach of trust] ‘cheating, or any offence under the penal Code punishable with not more than two years imprisonment and no previous conviction is proved against him, the Court before whom he is so convicted may, if it thinks fit, having regard to the age character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment release him after due admonition.

(2) An order under this section may be made by any appellate Court or by the High Court when exercising its powers of revision.

(3) When an order has been made under this section in respect of any offender, the High Court may, on appeal when there is a right of appeal to such Court or when exercising its powers of revision set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court shall not under this sub-section inflict a greater punishment than might have been infected by the Court by which the offender was convicted.

(4) The provisions of section 122 (and 126)¹ shall so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

²(5) Where proceedings are submitted to a Magistrate of the first class or a Sub-divisional Magistrate under the proviso to sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself, or direct such inquiry or evidence to be made or taken by the Magistrate who tried the case.

 

(1) If the Court which convicted the offender, or a Court which could have dealt
with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(2) An offender, when apprehended on any such warrant, shall brought for with before the Court issuing the warrant and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence Such Court may after hearing the case, pass sentence.

 

(1) The Court, before directing the release of an offender under section 562, sub-section (1), shall be satisfied that the offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period~ named for the observance of the conditions.

(2) * * *

 

Previously convicted offenders

(1) When any person having been convicted ---

is again convicted of any offence punishable under any of those section or Chapters with imprisonment for a term of three years or upwards by the High Court, Court of Session, District Magistrate, Sub-divisional Magistrate of Magistrate of the first class, such Court or Magistrate may if it or he thinks fit, at the time of passing sentence of transportations or imprisonment on such person, also order that his residence and any change of or absence from such residence after release be notified as hereinafter provided for a term exceeding five years from the date of the expiration of such sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall become void.

(3) The President of the Union may make rules to carry out the provisions of this section relating to the notification of residence or change of or absence from residence by released convicts.

(4) An order under this section may also be made by an appellate Court or by the High Court when exercising its powers of revision.

(5) Any person against whom an order has been made under this section and who refuses or neglects to comply with any rule so made shall be deemed within the meaning of section 176 of the Penal Code to have omitted to give a notice required for the purpose of preventing the commission of an offence.

(6) Any person charged with a breach of any such rule may be tried by a Magistrate of competent jurisdiction in the district in which the place last notified him as his place of residence is situated.

 

 

SCHEDULE I. * * * 

SCHEDULE II. - TABULAR STATEMENT OF OFFENCES.

SCHEDULE III. - ORDINARY POWERS OF MAGISTRATES.