CODE OF CRIMINAL PROCEDURE<br />



CODE OF CRIMINAL PROCEDURE
AN ACT TO REGULATE THE PROCEDURE OF THE CRIMINAL COURTS.
Act Nos,
15 of 1979
36 of 1979
68 of 1979
52 of 1980
[2nd July
, 1979
]
Short title.

1. This Act (hereinafter referred to as ” the Code “) may be cited as the Code of Criminal Procedure Act.

PART I
CHAPTER I
PRELIMINARY
Interpretation.

2. In this Code unless the context otherwise requires –

” appointed date ” means the 2nd day of July, 1979;

” Attorney-General. “

” Attorney-General” means the Attorney-General of the Republic of Sri Lanka and includes an acting Attorney-General;

” Bailable offence.”

” bailable offence” means an offence shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and ” non-bailable offence” means any other offence;

” Chapter.’ ” Schedule. ” Section.”

” Chapter ” means a Chapter of this Code, and ” Schedule” means a schedule annexed to this Code, and ” section ” means a section of this Code;

” Chief Justice.”

” Chief Justice ” means the Chief Justice of the Republic of Sri Lanka and includes an acting Chief Justice ;

” Cognizable offence.”

” cognizable offence ” means an offence for which and ” cognizable-case'” means a case in which a peace officer may in accordance with the First Schedule arrest without warrant;

” Complaint.”

“complaint” means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence;

” Corporation. “

” Corporation ” includes any corporation, board or other body established by or under any written law with capital wholly or partly provided by the Government by way of grant, loan or other form ;

“Court of Appeal.”

“Court of Appeal” and “court” when applicable to the Court of Appeal mean the Court of Appeal of the Republic of Sri Lanka for the time being or the President of the Court of Appeal or any Judge or acting Judge thereof;

“Discharge.”

“discharge”, with its grammatical variations and cognate expressions means the discontinuance of criminal proceedings against an accused but does not include an acquittal;

” Enactment.”

” enactment ” includes an Ordinance, Act or Law of Sri Lanka;

” Explosives.”

” explosives ” has the same meaning as in the Explosives Act;

” Fine.”

” Fine ” includes any fine, pecuniary forfeiture, or compensation adjudged upon any conviction for any crime or offence or for the breach of any enactment by any court;

“Fiscal.”

” Fiscal ” means the Fiscal of a court and includes any person authorized either generally or specially by a Judge to exercise, perform or discharge any power, duty or function of the Fiscal under this Code;

” Government Agent.”

” Government Agent ” or ” Government Agent of the district” means the Government Agent of the Administrative District and includes an Additional or an Assistant Government Agent of such district;

” Government Analyst.”


[2, 52 of 1980.]

” Government Analyst” includes any person appointed to be or to act as Government Analyst or Additional or Deputy or Senior Assistant or Assistant Government Analyst;

“Government Examiner of Questioned Documents.”


[2, 52 of 1980. ]

“Government Examiner of Questioned Documents ” includes any person appointed to be or to act as Government Examiner of Questioned Documents or Senior Assistant or Assistant Government Examiner of Questioned Documents;

” Government medical officer.”

“Government medical officer” includes any officer of the Department of Forensic Medicine of any Faculty of Medicine of any University of Sri Lanka;

“High Court.”

” High Court” and ” court” when applicable to the High Court mean the High Court of the Republic of Sri Lanka for the time being or a Judge of the High Court or an acting Judge of the High Court ;

” Indictable offence.”

“indictable offence” means an offence triable only by the High Court whether with or without a jury or by the High Court at Bar without a jury;

” Information Book.”

“Information Book” includes a crime pad or file maintained by the Criminal Investigation Department and any bureau of investigation for the purpose of recording statements;

” Inquirer.”

” inquirer” means a person appointed by the Minister under Chapter XI;

“Inquiry.”

“inquiry” includes every inquiry conducted under this Code before a Magistrate’s Court or by an inquirer;

” Island.”

” Island ” means the Island of Sri Lanka;

” Judge.”

” Judge ” means the presiding officer of a court and includes a Judge of the Supreme Court, Court of Appeal, High Court, District Court, Magistrate’s Court and Primary Court as the context may require and includes an acting Judge of such court ;

” Judicial proceeding.”

“judicial proceeding” means any proceeding in the course of which evidence is or may be legally taken;

“Magistrate.”

” Magistrate ” means a Magistrate ” appointed to a Magistrate’s Court and includes a Municipal Magistrate, a Magistrate of a Juvenile Court and an acting or additional Magistrate of any such court;

“Non-cognizable offence.”

“non-cognizable offence” means an offence for which and ” non- cognizable cognizable case ” means a case in offence. which a peace officer may not arrest without warrant;

“Offence.”

“offence” means any act or omission made punishable by any law for the time being in force in Sri Lanka;

“Offensive weapon.”

“offensive weapon has the same meaning as in the Offensive Weapons Act;

” Officer in charge of a police station.”

officer in charge of a police station ” includes, if the context so requires, an officer in charge of a branch of a police station and when the officer in charge of a police station or of a branch of a police station is absent therefrom or unable from illness to perform his duties, the police officer present at the police station or at the branch who is next in rank to such officer;

“Peace officer.”

“peace officer” includes police officers and grama seva niladharis appointed by a Government Agent in writing to perform police duties;

“Penal Code.”

“Penal Code” means the Penal Code together with every statutory modification or amendment thereof;

” Person.”

“person” includes a body of persons, whether incorporate or not;

“Pleader.”

“pleader”, used with reference to any proceeding in any court, means an attorney-at-law;

“Police officer.”

“police officer” means a member of an established police force and includes police reservists;

“Police station.”

“police station ” means any post declared generally or specially by the Minister in charge of the subject of Defence to be a police station, and includes a mobile police post, the Criminal Investigation Department and any bureau of investigation;

” Prescribed.”

” prescribed” means prescribed by this Code or by any rules made thereunder;

“Registrar.”

” Registrar” means the Registrar of any court as the context may require;

” Registrar of Finger Prints.”

“Registrar of Finger Prints” means the officer for the time being holding the office of Registrar of Finger Prints;

“Solicitor-General. ”

” Solicitor-General” means the Solicitor-General of Sri Lanka and includes an Additional Solicitor-General and a Deputy Solicitor-General;

” State Counsel.”

“State Counsel” includes a Senior State Counsel and an acting State Counsel;.

“Summary offence.”

“summary offence” means an offence triable by a Magistrate’s Court;

“Supreme Court.”

“Supreme Court” and “court” when applicable to the Supreme Court mean the Supreme Court of the Republic of Sri Lanka for the time being or the Chief Justice or any Judge thereof;

“Suspended sentence.”

“suspended sentence” means a sentence in respect of which an order under section 303 is made;

“Writing.” “Written.

” writing” and ” written ” include printing, lithography, photography, engraving, and every other mode in which words or figures can be expressed on paper or on any substance.

Words referring to acts include illegal omissions.

3.

(1) Words which refer to acts done extend to illegal omissions.

Words to have same meaning as in the Penal Code.

(2) All words and expressions used herein and defined in the Penal Code and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code.

Signatures to be in handwriting.

(3) Whenever by or for the purposes of this Code any person is directed or required to sign a document the signature must be written with a pen or other like instrument and must not be affixed or impressed by a stamp or other like means.

Powers, jurisdiction rights and duties of certain officers.

4. Where a power, jurisdiction or right is conferred, or a duty is imposed, on the Attorney-General, Solicitor-General, Inspector-General of Police, Government Analyst, Government Examiner of Questioned Documents, Registrar of Finger Prints, or the Registrar of a court, then, such power, jurisdiction or right may be exercised and the duty performed by the holder for the time being of the office or the acting holder of such office or the additional or the deputy or the assistant officer. Such additional, deputy or assistant officer shall include any person appointed to act in such office.

Trial of offences under Penal Code and other laws.

5. All offences –

(a) under the Penal Code,

(b) under any other law unless otherwise specially provided for in that law or any other law,

shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of this Code.

Saving of powers of Supreme Court, Court of Appeal and Attorney-General.

6. Anything in this Code shall not be construed as derogating from or limiting the powers or jurisdiction of the Supreme Court or of the Court of Appeal or of the Judges thereof or of the Attorney-General.

Cases not provided for.

7. As regards matters of criminal procedure for which special provisions may not have been made by this Code or by any other law for the time being in force such procedure as the justice of the case may require and as is not inconsistent with this Code may be followed.

PART II
CHAPTER II
POWERS OF CRIMINAL COURTS
A -POWERS GENERALLY
Power of Supreme Court and Court of Appeal to inspect courts of first instance.

8. In addition to other powers vested in the Supreme Court and the Court of Appeal, such courts in the exercise of their powers of superintendence may inspect all courts of first instance and give directions as to the keeping of the records thereof.

Criminal summary jurisdiction of Magistrates’ Courts.

9. Subject to and in accordance with the provisions of this Code every Magistrate’s Court shall have –

(a) power and authority and is hereby required to hear, try, determine, and dispose of in a summary way all suits or prosecutions for offences committed wholly or in part within its local jurisdiction, which offences by this Code or any other law in force are made cognizable by a Magistrate’s Court or a District Court ;

(b) Jurisdiction –

Jurisdiction to inquire into the commission offences.

(i) to inquire into alt offences committed or alleged to have of been committed wholly or in part within its local jurisdiction or in relation to which jurisdiction is by this Code given to such court to inquire into, to summon and examine all witnesses touching such offences, and to issue warrants and other processes to apprehend and summon all criminals and offenders and deal with them according to law ; and

To issue search warrants and to require sureties for the peace.

(ii) to issue warrants to search or to cause to be searched all places wherein any stolen goods or any goods, articles, or things with which or in respect of which any offence has been committed are alleged to be kept or concealed, and to require persons to furnish security for the peace or for their good behaviour according to law ; and

To inquire into cases of sudden or accidental death.

(iii) to inquire into all cases in which any person shall die in any prison or mental or leprosy hospital or shall come to his death by violence or accident, or when death shall have occurred suddenly, or when the body of any person shall be found dead without its being known how such person came by his death.

Offences under Penal code.

10. Subject to the other provisions of this Code any offence under the Penal Code whether committed before or after the appointed date may be tried save as otherwise specially provided for in any law –

(a) by the High Court ; or

(b) by a Magistrate’s Court where that offence is shown in the eighth column of the First Schedule to be triable by a Magistrate’s Court.

Offences under other laws.

11. Any offence under any law other than the Penal Code whether committed before or after the appointed date shall be tried save as otherwise specially provided for in any law – (Alterations necessitated by this provision have been made in other enactments reproduced in this Edition.)

(a) where a court is mentioned in that behalf in that law –

(i) by the High Court where the court mentioned is the High Court or in relation to an offence punishable with imprisonment for a term exceeding two years or with a fine exceeding one thousand five hundred rupees, the court mentioned is the District Court;

(ii) by a Magistrate’s Court where the court mentioned is the Magistrate’s Court or in relation to an offence punishable with imprisonment for a term not exceeding two years or with a fine not exceeding one thousand five hundred rupees, the court mentioned is the District Court;

(b) where a court is not mentioned in that behalf in that law –

(i) by the High Court; or

(ii) by a Magistrate’s Court where the offence is punishable with imprisonment not exceeding two years or with a fine not exceeding one thousand five hundred rupees.

High Court to try cases only upon indictment.

12. Subject to the provisions of this Code and of any other written law the High Court shall not take cognizance of any offence unless the accused person has been indicted before it for trial by or at the instance of the Attorney-General.

Sentence which High Court may impose.

13. The High Court may impose any sentence or other penalty prescribed by written law.

Sentence which a Magistrate’s Court may impose.

14. A Magistrate’s Court may impose any of the following sentences: –

(a) imprisonment of either description for a term not exceeding two years;

(b) fine not exceeding one thousand five hundred rupees;

(c) whipping;

(d) any lawful sentence combining any two of the sentences aforesaid :

Provided that anything in this section shall not be deemed to repeal the provisions of any enactment in force whereby special powers of punishment are given.

No sentence of imprisonment for a term of less than seven days.

15.

(1) Notwithstanding anything in this Code, the Penal Code, or any other written law to the contrary, any court shall not sentence any person to imprisonment, whether in default of payment of a fine or not, for a term which is less than seven days.

Sentence of detention in precincts of court in lieu of imprisonment.

(2) Any court may, in any circumstances in which it is empowered by any written or other law to sentence an offender to imprisonment, whether in default of payment of a fine or not, in lieu of imposing a sentence of imprisonment, order that the offender be detained in the precincts of the court until such hour on the day on which the order is made, not being later than 8 p.m., as the court may specify in the order.

Power of courts to sentence to imprisonment in default of payment of fine.

(3) Any court may impose such term of imprisonment in default of payment of a fine as is authorized by law in case of such default, provided that the term imposed is not in excess of the court’s powers under this Code.

(4) The imprisonment imposed under subsection (3) may be in addition to a substantive sentence of imprisonment for the maximum term that may be imposed by the court under sections 13 and 14.

Sentence in case of conviction for several offences at one trial.

16.

(1) When a person is convicted at one trial of any two or more distinct offences the court may, subject to section 301, sentence him for such offences to the several punishments prescribed therefor which such court is competent to inflict; such punishments when consisting of imprisonment to commence, unless the court orders them or any of them to run concurrently, the one after the expiration of the other in such order as the court may direct, even where the aggregate punishment for the several offences is in excess of the punishment which the court is competent to inflict on conviction of one single offence:

Maximum term of punishment.

Provided that if the case is tried by a Magistrate’s Court the aggregate punishment shall not exceed twice the amount of punishment which such court in the exercise of its ordinary jurisdiction is competent to inflict.

(2) For the purpose of appeal aggregate sentences imposed under subsection (1) in case of convictions for several offences at one trial shall be deemed to be a single sentence.

B-PAYMENTS OF COSTS AND COMPENSATION
Payment of costs compensation and upon acquittal.

17.

(1) Whenever a court acquits or discharges the accused and declares that the complaint was frivolous or vexatious, it shall be lawful for such court to order the complainant to pay State costs in a sum determined by the court. The court may, in addition, at the same time, order the complainant to pay to the accused or to each of the accused when there are more than one, such compensation as it shall think fit.

(2) Whenever any person causes a police officer to arrest another person, if it appears to the court taking cognizance of the case that, there was no sufficient ground for causing such arrest, the court may award such compensation as it thinks fit to be paid by the person so causing the arrest to the person so arrested for his loss of time and income and for his expenses in the matter. If more persons than one are arrested, the court may in like manner award to each of them such compensation as the court shall think fit. The payment of such compensation shall not be a bar to an action for false imprisonment.

(3) Before making any order under the preceding subsections the court shall record and consider any objection which the complainant may urge against the making of the order, and, if the court makes such order, it shall record its reasons for making the same.

Payment of compensation upon conviction.

(4) Whenever any person is convicted of any offence or where the court holds the charge to be proved but proceeds to deal with the offender without convicting him, the court may order the person convicted or against whom the court holds the charge to be proved to pay within such time or in such instalments as the court may direct, Such sum by way of compensation to any person affected by the offence as to the court shall seem fit.

(5) If the offender referred to in subsection (4) is under the age of sixteen years the court may, if it deems fit, order the payment to be made by his parent or guardian.

(6) Any sum awarded under this section whether by way of costs or compensation shall be recoverable as if it were a fine imposed by the court.

Compensation not to exceed five hundred rupees.

(7) When the compensation ordered is by a Magistrate’s Court such compensation shall not exceed five hundred rupees to each aggrieved party.

Fine may be applied to defray expenses of prosecution.

(8) Whenever a court imposes a fine or a sentence of which a fine forms a part, the court may order the whole or any part of the fine recovered to be applied –

(a) in defraying the expenses properly incurred in the prosecution; or

(b) in compensation for the injury caused by the offence committed.

(9) 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 this section.

C – COMMUNITY SERVICE ORDERS
Community service orders.

18.

(1) The court may in lieu of imposing a sentence of imprisonment on conviction of an accused person or in lieu of imposing a sentence of imprisonment on an accused person in default of payment of a fine enter an order hereinafter referred to as a “community service order”, directing the accused person to perform stipulated service at a named place in a State or State-; sponsored project, if regulations have been made by the Minister for carrying out such an order.

(2) The duration of the community service order shall not be more than one year when the order is entered by a Magistrate and three years when the order is entered by the High Court.

(3) If the convicted person in respect of whom a community service order has been entered, fails to attend at the place of work named, or having attended fails to do the stipulated service or is irregular in attendance or not punctual in attendance or does not work to the satisfaction of the management of the project or otherwise fails to comply with such community service order, then it shall be lawful for the court which entered the order to revoke it and impose such sentence of imprisonment as it thinks fit.

(4) Throughout the duration of the community service order, the manager or a supervising officer of the project shall forward, every month to the court which passed the community service order, a report on the attendance and work of the convicted person and stating whether the community service order is being or has been complied with and such report shall be final and conclusive on such questions.

PART III
GENERAL PROVISIONS
CHAPTER III
OF AID AND INFORMATION TO THE MAGISTRATES AND POLICE AND PERSONS MAKING ARRESTS
Public when to assist Magistrates and peace officers.

19. Every person is bound to assist a Magistrate or a peace officer reasonably demanding his aid –

(a) in the taking of any other person whom such Magistrate or peace officer is authorized to arrest;

(b) in the prevention of a breach of the peace or of any injury attempted to be committed to any public property;

(c) in the suppression of a riot-or any affray.

Aid to other than peace officers executing warrant.

20. When a warrant is directed to a person other than a peace officer any other person may aid in the execution of such warrant if the person to whom the warrant is directed be near at hand and acting in the execution of his warrant.

Public to give information about certain offences.

21. Every person aware-

(a) of the commission of or the intention certain of any other person to commit any offence punishable under the following sections of the Penal Code namely, 114, 115, 116, 117, 118, 119, 120, 121, 122, 126, 2%. 297. 371, 380, 381, 382, 383, 384. 418. 419, 435, 436, 442, 443, 444, 445 and 446;

(b) of any sudden or unnatural death or death by violence, or of any death under suspicious circumstances, or of the body of any person being found dead without it being known how such person came by death,

shall in the absence of reasonable excuse – the burden of proving which shall lie upon the person so aware – forthwith -give information to the nearest Magistrate’s Court or to the officer in charge of the nearest police station or to a peace officer or to the grama seva niladhari of the nearest village of such commission or intention or of such sudden unnatural or violent death or death under suspicious circumstances or of the finding of such dead body.

Peace officer bound to report certain matters.

22. Every peace officer shall forthwith communicate to the nearest Magistrate or inquirer having jurisdiction or to his own. immediate superior officer any information which he may have or obtain respecting –

(a) the commission of or the attempt to commit any offence within the local jurisdiction in which he is empowered to act;

(b) the occurrence therein of any sudden or unnatural death or of any death by violence or under suspicious circumstances;

(c) the finding of the dead body of any person without it being, known how such person came by death.

CHAPTER IV
OF ARREST, ESCAPE, AND RETAKING
A – ARREST GENERALLY
Arrest how made.

23.

(1) In making an arrest the person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the -custody by word or action and shall inform the person to be arrested of the nature of the charge or allegation upon which he is arrested.

Explanation. –

Keeping a person in confinement or restraint without formally arresting him or under the colourable pretension that an arrest has not been made when to all intents and purposes such person is in custody shall be deemed to be an arrest of such person;

Resisting endeavour to arrest.

(2) If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, the person matting the arrest may use such means as are reasonably necessary to effect the arrest.

(3) Anything in this section shall not give a right to cause the death of a person who is not accused of an offence punishable with death.

Search of place entered by person sought to be arrested.

24. If any person acting under a warrant of arrest or having authority to arrest has reason to believe that any person to be arrested has entered into or is within any place, the person residing in or in charge of such place shall on demand of such person acting or having authority as aforesaid allow him free ingress therein and afford all reasonable facilities for a search therein.

Procedure where ingress not obtainable.

25. If ingress to such place cannot be obtained under section 24 it shall be lawful in any case for a person acting under a warrant, or in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity of escape, for a peace officer to enter such place and search therein, and in order to effect an entrance into such place to break open any outer or inner door or window of any place whether that of the person to be arrested or of any other person, if after notification of his authority and purpose and demand of admittance duly made he cannot otherwise obtain admittance.

Search of person in place searched under warrant.

26. Whenever a search for anything is or is about to be lawfully made in any house or place in respect of any offence all persons found therein may be lawfully detained in such house or place until the search is completed, and subject to section 30 they may, if the thing sought be in its nature capable of being concealed on the person, be searched for it by or in the presence of a Magistrate or inquirer or police officer not under the rank of Inspector.

Power to break open doors and windows for purposes of liberation.

27. Any person authorized to make an arrest may break open any outer or inner door or window of any place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

No unnecessary restraint.

28. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Search of persons arrested.

29. Whenever a person –

(a) is arrested by a peace officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; or

(b) is arrested without warrant or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail,

the peace officer making the arrest, or when the arrest is made by a private person the peace officer to whom he hands over the person arrested, may subject to section 30 search such person and place in safe custody all articles other than necessary wearing apparel found upon him, and any of such articles which there is reason to believe were the instruments or the fruits or other evidence of the crime may be detained until his discharge or acquittal.

Mode of searching women.

30. Whenever it is necessary to cause a woman to be searched the search shall be made by another woman with strict regard to decency.

Power to seize offensive weapons.

31. The person making any arrest under this Code may take from the person arrested any offensive weapons or any instrument capable of being used for committing an offence which he has about his person and shall deliver all weapons and instruments so taken to the court or officer before which or whom the person making the arrest is required by law to produce the person arrested.

B – ARREST WITHOUT A WARRANT
When peace officers may arrest without warrant.

32.

(1) Any peace officer may without an order from a Magistrate and without a warrant arrest any person –

(a) who in his presence commits any breach of the peace;

(A) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;

(c) having in his possession without lawful excuse (the burden of proving which excuse shall He on such person) any implement of house-breaking;

(d) who has been proclaimed as an offender;

(e) in whose possession anything is found which may reasonably be suspected to be property stolen or fraudulently obtained and who may reasonably be suspected of having committed an offence with reference to such thing;

(f) who obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody;

(g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy or Air Force;

(h) found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence;

(i) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Sri Lanka, which if committed in Sri Lanka would have been punishable as an offence and for which he is under any law for: the time being in force relating to extradition or to fugitive persons or otherwise liable to be apprehended or detained in custody in Sri Lanka.

(2) Anything this section shall not be held to interfere with or modify the operation of any enactment empowering a peace officer to arrest without a warrant.

power of arrest in non-cognizable cases.

33.

(1) When any person in the presence of a peace officer is accused of committing a non-cognizable offence and refuses on the demand of such peace officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such peace officer in order that his name or residence may be ascertained, and he shall within twenty-four hours from the arrest exclusive of the time necessary for the journey be taken before the nearest Magistrate’s Court unless before that time his true name and residence are ascertained, in which case such person shall be forthwith released on his executing a bond for his appearance before a Magistrate’s Court if so required.

(2) When any person is accused of committing a non-cognizable offence and a peace officer has reason to believe that such person has no permanent residence in Sri Lanka and that he is about to leave Sri Lanka, he may be arrested by such peace officer and shall be taken forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate’s Court or may order him to be detained in custody until he can be tried.

Pursuit of offenders into other jurisdiction.

34. For the purpose of arresting any person whom he has power to arrest without a warrant a peace officer may pursue any such person into any part of Sri Lanka.

Arrest by private persons, procedure on such arrest.

35. Any private person may arrest any person who in his presence commits a cognizable offence or who has been proclaimed as an offender, or who is running away and whom he reasonably suspects of having committed a cognizable offence, and shall without unnecessary delay make over the person so arrested to the nearest peace officer or in the absence of a peace officer take such person to the nearest police station. If there is reason to believe that such person comes under the provisions of section 32 a peace officer shall re-arrest him. If there is reason to believe he has committed a non-cognizable offence and he refuses on the demand of a police officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false or is a person whom such officer has reason to believe is about to leave Sri Lanka, he shall be dealt with under the provisions of section 33. If there is no reason to believe that he has committed any offence he shall be at once discharged.

How person arrested is to be dealt with.

36. A peace officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to bail take or send the person arrested before a Magistrate having jurisdiction in the case.

Person arrested not to be detained more than twenty-four hours.

37. Any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.

Police to report arrests.

38. Officers in charge of police stations shall report to the Magistrates’ Courts of their respective districts the cases of all persons arrested without warrant by any police officer attached to their stations or brought before them and whether such persons have been admitted to bail or otherwise.

Discharge of person arrested.

39. Any person who has been arrested without a warrant by a peace officer shall not be discharged except on his own bond or on bail or under the special order in writing of a Magistrate.

Offence committed in the presence of Magistrate

40. When any offence is committed in the presence of a Magistrate within the local limits of his jurisdiction he may himself arrest or order any person to arrest the offender and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.

Arrest by or in presence of Magistrate.

41. Any Magistrate may at any time arrest or direct the arrest in his presence within the local limits of his jurisdiction of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Power to pursue and retake a person escaping from lawful custody.

42. If a person in lawful custody escapes or is rescued the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place, either within or without the jurisdiction where he was so in custody, and deal with such person as he might have done on the original taking.

provisions of sections 24,25 and 27 to apply to arrested under section 42.

43. The provisions of sections 24, 25 and Provisions of 27 shall apply to arrest under section 42 although the person making the arrest is not to acting under a warrant and is not a peace officer having authority to arrest.

CHAPTER V
OF PROCESS TO COMPEL APPEARANCE
A. – SUMMONS
Registries of summons

44.

(1) Every summons issued by a court under this Code shall be in writing in duplicate and signed by the Registrar issuing the summons or such other officer as such court may appoint and shall be in the prescribed form.

(2) If the person summoned is a person who is believed not to be able to read the language of the court one of such duplicates shall have annexed thereto a translation in a language which such person is believed to be. able to read.

(3) There shall be attached to every summons issued to an accused person a copy of the complaint or report or other document upon which proceedings against him have been instituted together with a list specifying the names and addresses of the witnesses for the prosecution, if any.

Summons how served.

45.

(1) The summons shall ordinarily be served by the Fiscal:

Provided that –

(a) where the proceedings have been instituted by a police officer or where the case is before the High Court or where the summons cannot otherwise be served, such summons shall be served by a police officer; or

(b) where the circumstances require it, the summons may be directed by the court to be served by a grama seva niladhari or by registered post.

(2) The summons shall if practicable be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons which in the case of a person who is believed not to be able to read the language of the court shall have annexed thereto the translation in the language which such person is believed to be able to read.

(3) In the case of a company or corporation or incorporated association of persons the summons may be served on the managing director, secretary or other like officer or the person in charge of the principal place of business of such company, corporation or association.

(4) In the case of an unincorporated association of persons the summons may be served by delivering it to the president, secretary or other like officer of such association.

(5) Where the summons cannot be served under subsection (3) or (4) on a company, corporation or association of persons whether incorporated or not, such summons may be served by delivering it by registered post at the registered office, or, if there is no registered office, at the principal place of business of such company, corporation or association.

Service when person summoned cannot be found.

46. When the person to be summoned cannot by the exercise of due diligence be found the summons may be served by leaving one of the duplicates and the translation where necessary for him with some adult member of his family or with his servant residing with him.

Procedure when personal service cannot be effected.

47. If the service prescribed in sections 45 and 46 cannot by the exercise of due diligence be effected the serving officer shall affix one of the duplicates and the translation where necessary of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides, and in such case the summons, if the court either before or after such affixing so directs, shall be deemed to have been duly served.

Service on employees of the State, local corporations.

48.

(1) Where the person summoned is authorities or an employee of the State or of a local authority or of a corporation the court issuing the summons shall ordinarily send it in duplicate and a translation where necessary to the head of the department or office in which such person is employed; and such head shall thereupon cause one of the duplicates with the translation where necessary to be served personally on the employee and shall return the other to the court with an endorsement of service.

(2) In this section, ” head of department or office ” shall mean –

(a) when used with reference to a member of any unit of the Sri Lanka Army, Navy or Air Force, the Commanding Officer of that unit;

(b) when used with reference to a person employed in a local authority, if the local authority is a Municipal Council, the Municipal Commissioner of that Council; if the local authority is an Urban or Town Council, the Secretary of the Council; and if the local authority is a Village Council, the Chairman of that Council;

(c) when used with reference to any other employee of the State or of a corporation, the head of the department of Government or of the corporation as the case may be in which such person is employed.

Proof of service.

49.

(1) When a summons issued by a court is served an affidavit of such service purporting to be made before an officer duly authorized to administer an oath, or affirmation, or a report of such service purporting to be made by a peace officer, or an advice of delivery issued by the Post Office under the Post Office Rules or in the case mentioned in section 48 the endorsement therein mentioned, as the case may be, shall be admissible in evidence and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2) Every person making such report or endorsement as in this section mentioned shall be legally bound to state the truth in such statement or endorsement.

(3) Any person appointed by the Minister in that behalf is hereby authorized to administer the oath or affirmation which is requisite to the making of the affidavit mentioned in subsection (1).

B – WARRANT OF ARREST
Form of warrant of arrest.

50.

(1) Every warrant of arrest issued by a court under this Code shall be in writing, signed by a Judge of that court and shall be in the prescribed form.

Continuance of warrant of arrest.

(2) Every such warrant shall remain in force until it is cancelled by the court which issued it or until it is executed.

Court may direct security to be taken.

51.

(1) A Magistrate’s Court issuing a warrant for the arrest of any person may in the case of any non-bailable offence and shall in the case of a bailable offence direct by endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.

(2) The endorsement shall state –

(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound;

(c) the day and the hour at which he is to attend before the court.

(3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the court.

Warrants to whom directed.

52.

(1) A warrant of arrest issued by a court shall ordinarily be directed to the Fiscal of that court and may be executed by the Fiscal and peace officers within the limits of their several and respective jurisdictions or in any part of Sri Lanka by any police officer.

(2) The court issuing the warrant may direct it to any other person or persons by name or office and such person or persons or any police officer may execute the same.

(3) When the warrant is directed to a peace officer by name it shall not be executed by another peace officer unless endorsed to him by name.

(4) When the warrant is directed to more persons than one it may be executed by all or any one or more of them.

Notification of substance of warrant.

53. The person executing a warrant of arrest shall notify the substance thereof to the person arrested, and if so required by the person arrested shall show him the warrant or a copy thereof signed by the person issuing the same.

Person arrested of to be brought before court without delay.

54. The person executing a warrant of arrest shall (subject to the provisions section. 51 as to security) without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person, and he shall endorse on the warrant the time when and the place where the arrest was made.

where warrant may be executed.

55. A warrant of arrest may be executed at any place in Sri Lanka.

Warrants for execution outside jurisdiction.

56.

(1) When a warrant of arrest is to be executed outside the local limits of the jurisdiction of the court issuing it, the court shall ordinarily forward it by post or otherwise to the Magistrate’s Court within the local limits of the jurisdiction of which it is to be executed.

(2) A Magistrate of the Magistrate’s Court to which the warrant is so forwarded shall endorse his name thereon and if practicable cause it to be executed within the local limits of his jurisdiction.

(3) Whenever there is reason to believe that the delay or publicity occasioned by obtaining the endorsement of the Magistrate within the local limits of whose jurisdiction a warrant is to be executed will prevent such execution, the court issuing the warrant may direct the warrant specially to any person; and a warrant so specially directed shall have effect and may lawfully be executed by such person without such endorsement as aforesaid anywhere within Sri Lanka:

Provided always that upon the execution of such warrant the provisions of section 58 shall apply.

Warrant directed to Fiscal for execution outside jurisdiction.

57. When a warrant directed to a Fiscal is to be executed outside the jurisdiction of the court to which he is appointed he shall endorse it to the Fiscal of the court within the local limits of whose jurisdiction, the warrant is to be executed and shall thereupon forward the same by post or otherwise to such Fiscal, who upon receipt thereof shall cause such warrant to be executed in the same way as if it had been originally directed to him.

Procedure on arrest of person against whom warrant is issued.

58.

(1) When a warrant of arrest is executed outside the local limits of the jurisdiction of the court by which it was issued the person arrested shall, unless the court which issued the warrant is within twenty miles of the place of arrest or is nearer than the Magistrate’s Court within the local limits of the Jurisdiction of which the arrest was made or unless security be taken under section 51, be brought before such last-mentioned Magistrate’s Court.

(2) The Magistrate’s Court before which the person arrested is brought shall, if the person arrested appears to be the person intended by the court which issued the warrant, direct his removal in custody to such last-mentioned court:

Provided that if the offence be bailable and the person arrested be ready and willing to give bail to the satisfaction of the court before which he shall have been brought, or a direction has been endorsed under section 51 on the warrant and such person is ready and willing to give the security required by such direction, such last-mentioned court shall take such bail or security as the case may be and forward the bond to the court which issued the warrant.

(3) Anything in this section shall not be deemed to prevent a peace officer from taking security under section 51.

Arrest possible though warrant is not in hand.

59. Where a police officer has reasonable grounds to believe that a person is one for whose arrest a warrant of arrest has been issued, he may notwithstanding anything to the contrary in this Chapter arrest that person in execution of the warrant although the warrant is not in his possession for the time being.

C – PROCLAMATION AND ATTACHMENT
Proclamation for person absconding.

60.

(1) If any court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows: –

(a) the proclamation drawn in Sinhala and Tamil shall be publicly read in both these languages in some conspicuous place of the town or village in which such person ordinarily resides;

(b) copies in Sinhala and Tamil of the proclamation shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and

(c) copies in Sinhala and Tamil of the proclamation shall be affixed to some conspicuous part of the court-house.

(3) A statement by the court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this section have been complied with and that the proclamation was published on such day.

Attachment of properly of person absconding.

61.

(1) The court may after issuing a proclamation under section 60 order the attachment or any property, movable or immovable or both, belonging to the proclaimed person.

(2) Such order shall authorize the attachment of any property belonging to such person within the local jurisdiction of the court by which it is made, and it shall authorize the attachment of any property belonging to such person situated outside the jurisdiction of that court when endorsed by a Magistrate within whose jurisdiction such property is situate.

(3) If the property ordered to be attached be debts or other movable property, the attachment under this section shall be made –

(a) by seizure ; or

(b) by the appointment of a receiver ; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or

(d) by all or any two of such methods as the court thinks fit.

(4) If the property ordered to be attached be immovable, the attachment under this section shall be made through the Government Agent or Assistant Government Agent of the district in which such property is situate –

(a) by taking possession ; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to anyone on his behalf; or

(d) by all or any two of such methods as the court thinks fit.

(5) The powers, duties, and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed in a civil proceeding.

(6) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of the Minister but it shall not be sold until the expiration of six months from the date of the attachment unless it is subject to speedy and natural decay or the court considers that the sale would be for the benefit of the owner, in either of which cases the court may cause it to be sold whenever it thinks fit.

(7) Notice of every such order of attachment of immovable property shall be forthwith given by the court making the same to the Registrar of Lands for the district in which such property is situate, who shall forthwith register the same, and no such order shall take effect until the same is registered under the provisions of the Registration of Documents Ordinance.

(8) In the case of the sale of immovable property the conveyance to the purchaser shall be executed by the Government Agent or the Assistant Government Agent of the district in which such property is situate, and a conveyance so executed shall vest such property in the purchaser in like manner as if such conveyance had been executed by the proclaimed person.

Restoration of attached property.

62. If within one year from the date of the attachment any person whose property is or has been at the disposal of the Minister under section 61 appears voluntarily or is apprehended and brought before the court by whose order the property was attached and proves to the satisfaction of such court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, s’-.An property, or if the same has been sold the net proceeds of the sale or if part only thereof has been sold the net proceeds of the sale and the residue of the property, shall after satisfying thereout all costs incurred in consequence of the attachment be delivered to him.

D. – OTHER RULES REGARDING PROCESSES
Issue of warrant in lieu of or in summons.

63.

(1) A court may in any case in which it is empowered by this Code to issue a summons for the appearance of any person other than a juror issue, after recording its reasons in writing, a warrant for his arrest –

(a) if either before the issue of summons or after the issue of the same but before the time fixed for his appearance the court sees reason to believe that he has absconded or will not obey the summons ; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

Court may require deposit to meet expenses of executing warrant.

(2) The court may make it a condition of the issue of a warrant under subsection (1) that the person applying for it shall deposit such sum as the court may deem reasonable for the purpose of defraying any expenditure that may be incurred in executing the warrant.

Power to take bond for appearance.

64.

(1) When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or a warrant is present in court, the officer presiding in such court may require such person to execute a bond with or without sureties for his appearance in such court.

(2) When any person who is bound by any bond taken under this Code to appear before a court does not so appear the officer presiding in such court may issue a warrant directing that such person be arrested and produced before him.

Summons to run in any part of Sri Lanka.

65.

(1) All summonses to appear may be served in any part of Sri Lanka, provided that such summons shall not be served outside the local limits of the jurisdiction of the court issuing the same unless the same be endorsed by such court with the words ” For service out of the jurisdiction “.

(2) Such summons shall not be endorsed with the words ” For service out of the jurisdiction” unless the court is satisfied that there are grounds for allowing such service.

(3) The provisions of this Chapter as to the direction and execution of warrants shall apply as near as may be to summonses.

CHAPTER VI
OF PROCESS TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE PROPERTY AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED
A. – SUMMONS TO PRODUCE
Summons to produce document or other thing.

66.

(1) Whenever any court considers that the production of any document or other thing is necessary or desirable for the purpose of any proceeding under this Code by or before such court it may issue a summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it or to produce it at the time and place stated in the summons.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Anything in this section shall not be deemed to affect the provisions of sections 123 and 130 of the Evidence Ordinance.

Procedure as to letters,telegrams,&c.

67.

(1) If any book, letter, post card, telegram or other document in the custody of the Departments of Posts and Telecommunications is in the opinion of any court wanted for the purpose of any investigation or proceeding under this Code such court may require the Postal or Telecommunication authorities as the case may be to deliver such document to such person as the court directs.

(2) If any such document is in the opinion of the Attorney-General or in the opinion of a police officer not below the rank of Superintendent of Police wanted for any investigation or proceedings under this Code he may require the Postal or Telecommunication authorities as the case may be to cause search to be made for and to deliver such document to him or to any other person duly authorized by him.

B – SEARCH WARRANTS
When search warrant may be issued.

68.

(1)

(a) Where any court has reason to believe that a person to whom a summons under section 66 or a requisition under section 67 has been or might be addressed will not or would not produce or deliver the document or other thing as required by such summons or requisition; or

(b) where such document or other thing is not known to the court to be in the possession of any person ; or

(c) where the court considers that the purposes of any investigation or proceeding under this Code will be served by a general search or inspection,

the court may subject to subsection (3) issue a search warrant in the prescribed form and the person to whom such warrant is directed may search or inspect in accordance therewith and the provisions hereafter contained.

(2) Every such warrant shall remain in force for a reasonable number of days to be specified in such warrant.

(3) A warrant to search for a document in the custody of the Postal or Telecommunication authorities shall be granted only by the High Court.

Power to restrict warrant.

69. The court may if it thinks fit specify in the warrant the particular place or part thereof to- which only the search or inspection shall extend, and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.

Search of house suspected to contain stolen property, forged documents,& c.

70. If a Magistrate’s Court upon information and after such inquiry as it thinks necessary has reason to believe –

(a) that any place is used for the deposit or sale of stolen property or of property unlawfully obtained ; or

(b) that any place is used for the deposit or sale or manufacture of forged documents, false seals, or counterfeit stamps or coin, or instruments or materials for counterfeiting coin or stamps or for forging; or

(c) that any stolen property or property unlawfully obtained, forged documents, false seals, or counterfeit stamps or coin, or instruments or materials used for counterfeiting coin or stamps or for forging, are concealed, kept, or deposited in any place,

it may by warrant authorize the person to whom such warrant is directed –

(i) to enter, with such assistance as may be required, such place; and

(ii) to search the same in manner specified in the warrant; and

(iii) to take possession of any property, documents, seals, stamps, or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false, or counterfeit and also of any such instruments and materials as aforesaid; and

(iv) to convey such property, documents, seals, stamps, coins, instruments, or materials before a Magistrate*s Court or to guard the same on the spot until the offender is taken before a Magistrate’s Court or otherwise to dispose thereof in some place of safety; and

(v) to take into custody and bring before a Magistrate’s Court every person found in such place who appears to have been privy to the deposit, sale, or manufacture, or keeping of any such property, documents, seals, stamps, coins, instruments or materials, knowing or having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained or the said documents, seals, stamps, coins, instruments or materials to have been forged, falsified, or counterfeited or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps or for forging.

Disposal of things found in search beyond jurisdiction.

71. When in the execution of a search warrant at any place beyond the local limits of the jurisdiction of the court which issued search beyond the same any of the things for which search is made are found, such things together with a list of the same prepared under the provisions hereinafter contained shall be immediately taken before the court issuing the warrant unless such place is nearer to the Magistrate’s Court having local jurisdiction therein; in which case the list and things shall be immediately taken before such last-mentioned court, and unless there be good cause to the contrary such last-mentioned court shall make an order authorizing them to be taken to the court issuing the warrant.

C – DISCOVERY OF PERSONS WRONGFULLY CONFINED
Search for person wrongfully confined.

72. If any Magistrate’s Court has reason 10 believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith; and the person if found shall be immediately taken before such court, which shall make such order as in the circumstances of the case seems proper.

D – GENERAL PROVISION RELATING TO SEARCHES
Direction, &c., of search warrants.

73. The provisions of sections 20, 50, 52, 56 and 57 shall so far as may be apply to all search warrants issued under this Chapter.

Persons in charge of closed place to allow search.

74.

(1) Whenever any place liable to search or inspection under this Chapter is closed any person residing in or being in charge of such place shall on demand of the person executing the warrant and on production of the warrant allow him free ingress thereto and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained the person executing the warrant may proceed in manner provided by section 25.

Officer to make list of things seized.

75. The person executing the search warrant shall make a list of all things seized in the course of the search and of the places in which they are respectively found and shall sign such list.

Occupant of place searched may attend.

76. The occupant of the place searched or some person on his behalf shall in every instance be permitted to attend during the search and a copy of the list prepared under section 75, signed by the person executing the warrant, shall be delivered to such occupant or person.

E – MISCELLANEOUS
Court may impound things produced.

77. Any court may if it thinks fit impound any document or other thing produced before it under this Code.

Search warrants may be endorsed by peace officer.

78.

(1) A search warrant directed or endorsed to a peace officer may, if .he is not able to proceed in person, be executed by any other peace officer.

(2) In such case the name of such peace officer shall be endorsed upon the warrant by the officer to whom it is directed or endorsed.

Powers of Magistrate when present at search.

79.

(1) The Magistrate by whom a search warrant is issued may attend personally for the purpose of seeing that the warrant is duly executed.

(2) Any Magistrate may orally direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.

PART IV
PREVENTION OF OFFENCES
CHAPTER VII
OF SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR
A. – SECURITY FOR KEEPING THE PEACE ON CONVICTION
Keeping the peace on conviction.

80.

(1) Whenever any person is Security for convicted of any offence which involves a breach of the peace or of committing criminal intimidation by threatening injury to person or property, or of being a member of an unlawful assembly, and the court before which such person is convicted is of opinion that it is proper to require such person to execute a bond for keeping the peace, such court may at the time of passing sentence on such person order him to execute a bond for a sum proportionate to his means with or without sureties for keeping the peace during, such period in each instance as it thinks fit to fix, not exceeding two years if the sentence or order be by a Magistrate’s Court or three years if the sentence or order be by the High Court.

(2) If the conviction is set aside oh appeal or otherwise the bond so executed shall become void.

B. – SECURITY FOR KEEPING THE PEACE IN OTHER CASES AND SECURITY FOR GOOD BEHAVIOUR
Security for keeping the peace in other cases.

81. Whenever a Magistrate receives information that any person is likely to commit a breach of the peace or to do any wrongful act that may probably occasion a breach of the peace within the local limits of the jurisdiction of the court of such Magistrate, or that there is within such limits a person who is likely to commit a breach of the peace or do any wrongful act as aforesaid in any place beyond such limits the Magistrate may in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond with or without sureties for keeping the peace for such period not exceeding two years as the court thinks fit to fix.

Security for behaviour from suspected persons, vagrants. & c.

82. Whenever a Magistrate receives information –

(a) that any person is taking precautions to conceal his presence within the local limits of the jurisdiction of the court of such Magistrate and that there is reason to believe that such person is taking such precautions with a view to committing an offence; or

(b) that there is within such limits a person who has no ostensible means of subsistence or who cannot give a satisfactory account of himself,

such Magistrate may in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding two years as the court thinks fit to fix.

Security for good behaviour from habitual offenders.

83. Whenever a Magistrate receives information that any person within the local limits of the jurisdiction of the court of such Magistrate is an habitual robber, housebreaker, or thief or an habitual receiver of stolen property knowing the same to have been stolen or that he habitually commits extortion or in order to the committing of extortion habitually puts or attempts to put persons in fear of injury or that he is an habitual protector or harbourer of thieves or that he is an habitual aider in the concealment or disposal of stolen property or that he is a notorious bad liver or is a dangerous character, such Magistrate may in manner hereinafter provided require such person to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding two years as the Magistrate thinks fit to fix.

Summons or warrant in case of person not so present.

84. When a Magistrate acting under section 81 or section 82 or section 83 deems it necessary to require any person to show cause under such section he shall if such person is not present in court issue a summons requiring him to appear, or when such person is in custody but not present in court a warrant directing the officer in whose custody he is to bring before the court:

Provided that whenever it appears to such Magistrate upon the report of a peace officer or upon other information (the substance of which report or information shall be recorded by such Magistrate) that there is reason to fear the commission of a breach of the peace and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

Form of summons or warrant.

85. Every summons or warrant issued under section 84 shall contain a brief statement of the substance of the; information on which such summons or warrant is issued.

Inquiry as to the truth of information.

86.

(1) When any person appears or is brought before a Magistrate in compliance with or in execution of a summons or warrant issued under section 84 the Magistrate shall proceed to inquire into the: truth of the information upon which he has acted and to take such further evidence as may appear necessary.

(2) Such inquiry shall be held as nearly as may be practicable in the manner hereinafter prescribed for conducting trials in summary cases before Magistrates’ Courts.

(3) For the purpose of this section the fact that a person is an habitual offender or is such a person as is mentioned in section 83 may be proved by evidence of general repute or otherwise.

(4) Before commencing the inquiry the Magistrate may for reasons to be recorded by him, order such person to execute a bond for keeping the peace or for maintaining good behaviour pending the termination of the inquiry. An appeal shall not lie against any order made under this subsection.

Order to give security.

87. If upon such inquiry it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond with or without sureties, the Magistrate shall make an order accordingly ;

Provided –

(a) that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive;

(b) that when the person in respect of whom the inquiry is made is -a minor the bond shall be executed only by his sureties.

Discharge of person informed against.

88. If upon such inquiry it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purpose of the inquiry shall release him, or if such person is not in custody shall discharge him.

C – PROVISIONS APPLICABLE TO – ALL ORDERSTO FURNISH SECURITY
Imposition of term of imprisonment in default of security.

89.

(1) At the time of making an order requiring security under the preceding sections of this Chapter, the court shall direct that in default of giving the security the person in respect of whom the order is made shall be imprisoned for such term as the court may think fit, not exceeding two years where the court is the High Court, or one year where the court is a Magistrate’s Court:

Allowance of time to give security.

Provided that the court may, if it thinks fit so to do, allow time not exceeding one month for furnishing the security :

Provided further that where the court is of opinion that time should not be allowed it shall record the reasons for refusal of time.

(2) The provisions of the provisos to subsection (1) shall not apply to an order made in respect of a person who is, at the time the order is made, sentenced to or undergoing a sentence of imprisonment.

Commencement of period for which security is required.

90. The period for which security is required by an order made under the preceding sections of this Chapter shall commence –

(a) where time has not been allowed under section 89, on the date of such order;

(b) where time has been allowed under that section, on the date on which the time so allowed expires;

(c) where the order is in respect of a person who is, at the time the order is made, sentenced to or undergoing a sentence of imprisonment, on the date on which such sentence expires.

Contents of bond.

91.

(1) The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour as the case may be; and in the latter case the commission or attempt to commit or the abetment of any offence punishable with imprisonment, wherever it .may be committed, is a breach of the bond.

Power to reject sureties.

(2) A court may refuse to accept any surety offered on the ground that for reasons to be recorded by the court such surety is an unfit person.

Commitment to prison for default in giving security.

92.

(1) If any person ordered to give security under the preceding sections of this Chapter does not give such security on or before the date on which the period for which such security is to be given commences, he shall be committed to prison to undergo the term of imprisonment imposed under section 89, or, if he is already in prison, be detained in prison until such term expires, or until, before the expiration of such term, he gives the security to the court which made the order requiring it, or to the superintendent or jailer of the prison in which he is detained.

Simple imprisonment for failure to give security for the peace.

(2) Imprisonment for failure to give security for keeping the peace shall be Simple.

Rigorous or simple imprisonment for failure to give security for good behaviour.

(3) Imprisonment for failure to give security for good behaviour may be rigorous or simple as the court in each case directs.

Power to release person imprisoned for failing to give security.

93.

(1) Whenever a court is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person the court may order such person to be discharged.

(2) A court other than the Supreme Court or Court of Appeal shall not exercise this power except in cases where the imprisonment is under its own order.

D – DISCHARGE OF SURETIES
Discharge of sureties.

94.

(1) Any surety for the peaceable conduct or good behaviour of another person under the foregoing or any other provision of this Code or for the due attendance of any person before a court or for the due performance of any stipulations by any person, may at any time apply to the court which directed the execution of the bond to cancel it.

(2) On such application being made the court may issue summons or warrant as it thinks fit requiring the person for whom such surety is bound, to appear or to be brought before it.

(3) When such person appears or is brought before the court such court may cancel the bond and in that event shall order such person to give for the unexpired portion of the term or unfulfilled stipulations of such bond, fresh security of the same description as the original security. Every such order shall have the same effect as the original order.

(4) The provisions of subsection (5) of section 408 shall also apply to any application by a surety for the peaceable conduct of good behaviour of another person to have the bond cancelled.

CHAPTER VIII
UNLAWFUL ASSEMBLY
Dispersal of unlawful assembly.

95.

(1) Any Magistrate or police officer not below the rank of Inspector of Police may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace to disperse, and it shall thereupon be the duty of the members of such assembly to disperse accordingly.

Use of civil force to disperse assembly.

(2) If upon being so commanded any such assembly does not disperse or if without being so commanded it conducts itself in such a manner as to show a determination not to disperse, the Magistrate or the-police officer may proceed to disperse such assembly by the use of such force as is reasonably necessary to disperse the assembly and may require the assistance of any person (not being a member of the Army, Navy or Air Force, whether of Sri Lanka or of any other country, acting as such) for the purpose of dispersing such assembly and if necessary arresting and confining the persons who form part of it in order to disperse such assembly or that they may be punished according to law.

Use of military force to disperse assembly.

(3) If any such assembly cannot be otherwise dispersed and it is necessary for the public security that it should be dispersed, a Magistrate or the Government Agent of the District or any police officer not below the rank of Superintendent of Police may cause it to be dispersed by requiring any commissioned or non-commissioned officer in command of any personnel of the Sri Lanka Army, Navy or Air Force, to disperse such assembly by military force and to arrest and confine such persons as form part of it as may be necessary in order to disperse the assembly or to have them punished according to law. Every such commissioned or non-commissioned officer shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force and do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons.

Power of commissioned military officers to disperse assembly.

96. When the public security is manifestly endangered by any such assembly and when a Magistrate, the Government Agent or a police officer not below the rank of Superintendent of Police cannot be communicated with, any commissioned officer of the Sri Lanka Army, Navy or Air Force may disperse such assembly by military force and may arrest arid confine any persons forming part of it in order to disperse such assembly or that they may be punished according to law; but if while he is acting under this section it becomes practicable for him to communicate with the Magistrate or Government Agent or a police officer not below the rank of Superintendent of Police he shall do so and shall thereafter obey the instructions of such Magistrate or Government Agent or police officer as to whether he shall or shall not continue such action.

Protection for acts done under this Chapter.

97.

(1) A prosecution shall not be instituted against any Magistrate, Government Agent, police officer or personnel of the Sri Lanka Army, Navy or Air Force or any person assisting a police officer in the dispersal of an assembly under this Chapter, for any act purporting to be done under this Chapter in any court except with the sanction of the Attorney-General.

(2)

(a) A Magistrate, Government Agent, police officer or member of the Sri Lanka Army, Navy or Air Force or any other person acting under this Chapter in good faith; and

(b) a member of the Sri Lanka Army, Navy or Air Force doing any act in obedience to any order which under military law he was bound to obey,

shall not be liable in civil or criminal proceedings for any act purported to be done under this Chapter.

CHAPTER IX
PUBLIC NUISANCES
A. – ORDERS FOR REMOVAL OR ABATEMENT IN CASES OF NUISANCE
Conditional order for removal of nuisance.

98.

(1) Whenever a Magistrate considers on receiving a report or other information and on taking such evidence (if any) as he thinks fit –

(a) that any unlawful obstruction or nuisance should be removed from any way, harbour, lake, river, or channel which is or may be lawfully used by the public or from any public place; or

(b) that any trade or occupation or the keeping of any goods or merchandise should by reason of its being injurious to the health or physical comfort of the community be suppressed or removed or prohibited; or

(c) that the construction of any building or the disposal of any substance should as being likely to occasion conflagration or explosion be prevented or stopped ; or

(d) that any building or tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence its removal, repair, or support is necessary; or

(e) that any tank, well, or excavation adjacent to any such way or public place should be fenced in such a manner as to prevent danger arising to the public,

such Magistrate may make a conditional order requiring that the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing, or controlling such building, substance, tree, tank, well or excavation shall within a time to be fixed by such order –

(i) remove such obstruction or nuisance; or

(ii) suppress or remove such trade or occupation; or

(iii) remove such goods or merchandise; or

(iv) prevent or stop the construction of such building; or

(v) remove, repair, or support it; or

(vi) alter the disposal of such substance; or

(vii) remove such tree; or

(viii) fence such tank, well, Or excavation as the case maybe.

(2) Any person against whom a conditional order has been made under subsection (1) may appear before the Magistrate making that order or any other Magistrate of that court before the expiration of the time fixed by that order and move to have the order set aside or modified in manner hereinafter provided.

(3) Any order duly made under this section shall not be called in question in any civil court.

(4) For the purpose of this section a ” public place ” includes also property belonging to the State or a corporation or vested in any public officer or department of State for public purposes and ground left unoccupied for- sanitary or recreative purposes.

Service or notification of order

99.

(1) The order and any other order or notice made or given under this Chapter shall if practicable be served on the person against whom it is made or to whom it is to be given in manner herein provided for service of a summons.

(2) If such order cannot be so served a copy thereof shall be posted up at such place or places as the court may consider fittest for conveying the information to such person.

Person to whom order is addressed to obey or show cause.

100.

(1) The person against whom such order is made shall within the time specified therein –

(a) perform the act directed thereby ; or

(b) act under subsection (2) of section 98.

Consequence of failing to do order

(2) If such person does not perform such act or appear and move to have the set aside or modified as required by subsection (1) he shall be liable to the penalty prescribed in that behalf in section 185 of the Penal Code and the order shall be made absolute;

Provided that if such person be a corporate body every director thereof shall be liable to the penalty hereinbefore prescribed unless such director proves that such default was not occasioned by any act of his or by any omission on his part.

Procedure in case of appearance

101.

(1) If such person appears and moves to have the order set aside or modified the Magistrate shall take evidence in the matter.

(2) If the Magistrate is satisfied that the order is not reasonable and proper it shall either rescind the same or modify it in accordance with the requirements of the case, and in the latter case the order as modified shall be made absolute.

(3) If the Magistrate is not so satisfied the order shall be made absolute.

Procedure on order being made absolute.

102. When an order has been made absolute under section 100 or section 101 the Magistrate shall give notice of the same to the person against whom the order was made and shall further require him to perform the act directed by the order within a time specified in the notice and inform him that in case of disobedience he will be liable to the penalties provided by subsection (2) of section 100.

Consequence of disobedience to order.

103.

(1) If such act is not performed within the time specified in the notice issued under section 102 the Magistrate may cause it to be performed and may recover the costs of performing it either by the sale of any building, goods, or other property removed by his order or by the distress and sale of any other movable property of such person within or without the local limits of the jurisdiction of his court. If such other property is without such limits the order shall authorize its attachment and sale when endorsed by a Magistrate within the local limits of whose jurisdiction the property to be attached is found.

(2) A suit shall not lie in respect of anything done in good faith under this section.

Injunction pending inquiry.

104.

(1) If the Magistrate making an order under section 98 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public he may issue such an injunction to the person against whom the order was made as-is required to obviate or prevent such danger or injury.

(2) In default of such person forthwith obeying such injunction the Magistrate may use or cause to be used such means as he thinks fit to obviate such danger or to prevent such injury.

(3) A suit shall not lie in respect of anything done in good faith by a Magistrate under this section.

Magistrate may prohibit continuance of public nuisances.

105. A Magistrate may order any person not to repeat or continue a public nuisance as defined in the Penal Code or any special or local law.

B. – TEMPORARY ORDERS IN URGENT CASES OF NUISANCE
Power to issue absolute order at once in urgent cases of nuisance.

106.

(1) In cases where in the opinion of a Magistrate immediate prevention or speedy remedy is desirable the Magistrate may by a written order stating the material facts of the case and served in manner provided by section 99 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if the Magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance, or injury, or risk of obstruction, annoyance, or injury to any persons lawfully employed, or danger to human life, health or safety, or a riot or an affray.

(2) An order under subsection (1) may in cases of emergency or in cases where the circumstances do not admit of the serving in due .time of a notice upon the persons against whom the order is directed be made ex parte.

(3) An order under subsection (I) may be directed to a particular person or to the public generally when frequenting or visiting a particular place, and in the latter case a copy of the order shall be posted up as provided by subsection (2) of section 99.

(4) Any Magistrate may rescind or alter any order made under subsection (1) by himself or by his predecessor in office.

(5) An order under this section shall not remain in force for more than fourteen days from the making thereof unless, in cases of danger to human life, health, or safety, or a likelihood of a riot or an affray, the Minister by notification in the Gazette otherwise directs.

CHAPTER X
PREVENTIVE ACTION OF PEACE OFFICERS
Peace officers to prevent cognizable offence.

107.

(1) Every peace officer may interpose for the purpose of preventing and shall to the best of his ability prevent the commission of any cognizable offence.

Information of attempt to commit such offence.

(2) Every peace officer receiving information of an attempt to commit any cognizable offence shall communicate such information to the officer to whom he is immediately subordinate or to some other officer whose duty it is to prevent or take cognizance of the commission of any such offence.

Peace officers, may arrest without order or warrant to prevent such offence.

(3) A peace officer knowing of an attempt to commit any cognizable offence may arrest without orders from a Magistrate and without a warrant the person so attempting if it appears to such officer that the commission of the offence cannot be otherwise prevented.

Prevention of injury to public property.

(4) A peace officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property movable or immovable or the removal of injury of any public landmark or buoy or other mark used for navigation.

Assistance to inspectors of weights and measures.

(5) It shall be the duty of every peace officer to give immediate information to an inspector of weights and measures of any breach of any provision of any enactment for the time being in force relating to weights and measures and at the request of any such inspector to assist him in carrying out the provisions of any such enactment.

PART V
INVESTIGATION OF OFFENCES
CHAPTER XI
INFORMATION TO POLICE OFFICERS AND INQUIRERS AND THEIR POWERS TO INVESTIGATE
Appointment of inquirers.

108. The Minister may appoint any person by name or office to be an inquirer for any area the limits of which shall be specified in such appointment.

Information of an offence.

109.

(1) Every information relating to the commission of an offence may be given orally or in writing to a police officer or inquirer.

(2) If such information is given orally to a police officer or to an inquirer, it shall be reduced to writing by him in the language in which it is given and be read over to the informant;

Provided that if it is not possible for the officer or inquirer to record the information in the language in which it is given the officer or inquirer shall request that the information be given in writing. If the informant is unable to give it in writing, the officer or inquirer shall record the information in one of the national languages after recording the reasons for doing so and shall read over the record to the informant or interpret it in the language he understands.

(3) Every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and such information or a copy thereof as is feasible shall be entered without delay by such police officer or inquirer in a book hereinafter referred to as ” the Information Book ” to be kept by the officer in charge of the police station at his police station or by the inquirer as the case may be. Such Information Book shall be in such form as the Minister may provide by regulations made in that behalf :

Provided that until the Minister by regulations provides the form of the Information Book, the form or forms in use on the day immediately preceding the appointed date shall continue to be valid for use.

(4) If the police officer who receives the information is not himself the officer in charge of the police station, then such police officer shall forthwith report the facts of such information to the officer in charge of the police station.


[3,52 of 1980.]

(4A) Where an offence is committed in the presence of a police officer he may proceed to record the statement of any person present at or about the scene of the offence and the statement of any suspect, and if such police officer is not himself the officer in charge of the police station of the area in which the offence is committed, he shall forthwith report the facts to the officer in charge of such police station.

Procedure where cognizable offence is suspected or breach of the peace apprehended.


[3,52 of 1980.]

(5)

(a) If from information received or otherwise, an officer in charge of the police station or inquirer has reason to suspect the commission of any offence, he shall himself make an investigation or authorize the making of an investigation under this Chapter in the manner hereinafter set out ;

Provided however, if the offence is a cognizable offence or he has reason to-apprehend a breach of the peace, he shall, in the case of every inquirer, forthwith submit a report to the Magistrate’s Court having jurisdiction in respect of such offence and in the case of an officer in charge of the police, station, forthwith submit a report to his own immediate superior and proceed in person to the spot to investigate the facts and circumstances of the case and to take such measures as may be necessary for the immediate discovery and arrest of the offender;

Provided further, that an officer in charge of a police station may depute one of his subordinate officers to proceed to the spot to make such investigation and to take such measures as may be necessary for the discovery and arrest of the offender.

(b) If it appears to an officer in charge of a police station or an inquirer that there is no sufficient ground for entering on an investigation he shall not be bound to investigate the case.

Power to police officer or inquirer to require attendance of persons able to give information.

(6) Any police officer or inquirer making an investigation under this Chapter may by order in writing require the attendance before himself of any person being within the limits of the station of such police officer or any adjoining station or within the local limits of the jurisdiction of such inquirer who, from the information given or otherwise, appears to be acquainted with the circumstances of the case, and such person shall attend as so required.

If any person when required to attend by an inquirer refuses or fails to do so, the inquirer may thereupon in his discretion issue a warrant to secure the attendance of such person as required by such order as aforesaid.

Examination of witnesses by police officer or inquirer.

110.

(1) Any police officer or inquirer making an investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case, and shall reduce into writing any statement made by the person so examined, but any oath or affirmation shall not be administered to any such person. The whole of such statement shall be recorded in full in the manner set out in section 109 (2). If the police officer or inquirer asks any question in clarification such question and the answer given thereto shall be recorded in form of question and answer. Such record shall be shown or read to such person or if he does not understand the language in which it is written, it shall be interpreted to him in a language he understands and he shall be at liberty to explain or add to his statement. The person making the statement shall then sign that statement immediately at the place where the statement is concluded. The police officer or inquirer recording the statement shall append below each statement recorded by him the following certificate : –

“I hereby declare that I have faithfully and accurately recorded the statement of the above named “.

If such statement is not recorded in the Information Book, a true copy thereof shall as soon as may be convenient be entered by such police officer or inquirer in the Information Book. Any alterations in such statement shall be initialled by the person making it and any portion of the statement that requires to be deleted as a result of the alteration shall be scored off in such a manner as would not make that portion illegible.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer or inquirer other than questions which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

Statements to police officer or inquirer to be used in accordance with Evidence Ordinance.

(3) A statement made by any person to a police officer in the course of any investigation may be used in accordance with the provisions of the Evidence Ordinance except for the purpose of corroborating the testimony of such person in court :

Provided that a statement made by an accused person in the course of any investigation shall only be used to prove that he made a different statement at a different time.

Anything in this subsection shall not be deemed to apply to any statement falling within the provisions of section 27 of the Evidence Ordinance or to prevent any statement made by a person in the course of any investigation being used as evidence in a charge under section 180 of the Penal Code.

(4) Any criminal court may send for the statements recorded in a case under inquiry or trial in such court and may use such statements or information, not as evidence in the case, but to aid it in such inquiry or trial. Save as otherwise provided for in section 444 neither the accused nor his agents shall be entitled to call for such statements, nor shall he or they be entitled to see them merely because they are referred to by the court but if they are used by the police officer or inquirer or witness who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer or inquirer or witness the provisions of the Evidence Ordinance, section 161 or section 145, as the case may be, shall apply :

Provided that where a preliminary inquiry under Chapter XV is being held in respect of any offence, such statements of witnesses as have up to then been recorded shall, on the application of the accused, be made available to him for his perusal in open court during the inquiry.

Inducement not to be offered.

111. Any inquirer or police officer shall not offer or make or cause to be offered or made any inducement, threat, or promise to any person charged with an offence to induce such person to make any statement with reference to the charge against such person. But any inquirer or police officer shall not prevent or discourage by any caution or otherwise any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will.

Search by police officers or inquirer

112.

(1) Whenever any officer in charge of a police station or an inquirer making an investigation in a cognizable case officer considers that the production of any document or thing is necessary to the conduct of the investigation, and there is reason to believe that a person to whom summons or order under section 66 has been or might be issued will not produce such document or other thing as directed in the summons or order, or when such document or other thing is not known to be in the possession of any person, such officer or inquirer may search or cause search to be made for the same in any place.

(2) Such officer or inquirer shall practicable conduct the search in person.

(3) If he is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may require any grama seva niladhari to make the search and he shall deliver to such grama seva niladhari an order in writing specifying the document or other thing for which search is to be made and the place to be searched, and such grama seva niladhari may thereupon search for such thing in such place.

(4) The provisions of this Code as to search warrants and searches thereupon shall so far as may be apply to a search made under this section.

Duly of subordinate officer to report to officer in charge of station.

113. When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station.

Release of accused if evidence deficient.

114. If upon an investigation under this Chapter it appears to the officer in charge of the police station or the inquire that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate’s Court, such officer or inquirer shall if such person is in custody release him on his executing a bond with or without sureties as such officer or inquirer may direct to appear if and when so required before a Magistrate’s Court having jurisdiction to try or inquire into the offence.

Procedure when investigation cannot be completed in twenty-four hours.


[4,52 of 1980.]

115.

(1) Whenever an investigation under this Chapter cannot be completed within the period of twenty-four hours fixed by section 37, and there are grounds for believing that further investigation is , necessary the officer in charge of the police station or the inquirer shall forthwith forward the suspect to the Magistrate having jurisdiction in the case and shall at the same time transmit to such Magistrate a report of the case, together with a summary of the statements, if any, made by each of the witnesses examined in the course of such investigation relating to the case.

(2) The Magistrate before whom a suspect is forwarded under this section, if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more. The provisions of section 264 shall apply to every such warrant. If at the end of the said period of fifteen days proceedings are not instituted the Magistrate may subject to subsection (3) either discharge the suspect or require him to execute a bond to appear if and when so required.


[2,68 of 1979.]

(3) Subject to the provisions of the Criminal Procedure ‘.Special Provisions) Law, No. 15 of 1978,* a Magistrate shall not release on bail or otherwise any person who has –

(a) surrendered himself to court, or

(b) been arrested,

consequent on an allegation that he has committed or has been concerned in committing or is suspected have committed or to have been concerned in committing an offence punishable under sections 114, 191 and 296 of the Penal Code :

Provided however that such person shall, subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, be released on bail if proceedings are not instituted against him in a Magistrate’s Court or the High Court before the expiration of a period of three months from the date he surrendered to court or is arrested unless the High Court on application made by the Attorney-General directs otherwise :

Provided further that the High Court may, subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978,* in special circumstances release such person on bail before or after the expiration of the period of three months referred to in the preceding provisions of this subsection.

(4) During the period that a suspect is in the lawful custody of a superintendent of prison, a court may upon an application in that behalf made by the police officer in charge of a police station authorize such or any other police officer to have access during reasonable hours to such suspect for the purpose of the investigation. The court may on an application in that behalf being made by an officer in charge of a police’ station authorize him or any other named police officer to take the suspect in the company of an officer of the Prisons Department from place to place (other than to a police station) if in the opinion of such court such action is considered necessary for the purpose of the investigation :

Provided that during the period a police officer has access to a suspect or takes him from place to place under the provisions of this subsection, the suspect shall be deemed to be an accused person in the custody of such police officer for the purpose of the application of subsection (1) of section 27 of the Evidence Ordinance.

Duty of officer or inquirer to forward case to a Magistrate’s Court if sufficient information is well founded.

116.

(1) If upon an investigation under this Chapter it appears to the officer in charge of the police station or the inquirer that the information is well founded such officer or inquirer shall forward the suspect under custody before the Magistrate’s Court having jurisdiction in the case, or if the offence is bailable and the suspect is able to give security, shall take security from him for his appearance before such court.

(2) When the officer in charge of a police station or an inquirer forwards a suspect before a Magistrate’s Court or takes security for his appearance, he shall send to such court any weapon or other article or document or specimen or sample which it may be necessary to produce before such court, and shall require the complainant (if any) and so many of the persons who appear to such an officer or inquirer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate’s Court therein named and give evidence in the matter of the charge against the suspect.


[5,52 of 1980.]

(3) The Magistrate may on application made by a police officer or inquirer forward any weapon or other article or document or specimen or sample to the Government Analyst, Government Examiner of Questioned Documents, Registrar of Finger Prints or Government medical officer, as the case may be, for analysis and report to the court.

(4) The officer or inquirer in whose presence the bond referred to in subsection (1) or subsection (2) is executed shall send such bond to the Magistrate’s Court.

(5) If any complainant or witness refuses to execute such bond, such officer or inquirer shall report the same to the Magistrate’s Court having jurisdiction which may thereupon in its discretion issue a warrant or summons to secure the attendance of such complainant or witness before itself to give evidence in the matter of the charge against the suspect.

Additional powers of inquirers.

117. Every inquirer shall, in addition to the powers hereinbefore mentioned within the local limits of his jurisdiction, have the following powers : –

(a) power to arrest or direct the arrest in his presence of any offender ;

(b) power to issue a warrant or to order the removal of an accused person arrested under a warrant-

powers of police officers and inquirer! in non-cognizable cases.


[$ 6,2 of 1980.]

118.

(1) If an inquirer or a police officer who is investigating any non-cognizable offence is of opinion that it is necessary to exercise any power conferred upon him by this Act which could be exercised only in respect of a cognizable offence he shall, upon receiving an order from a Magistrate, be entitled to exercise such power in respect of such non-cognizable offence.

(2) Subject to the provisions of section 37, every inquirer and officer in charge of a station shall have power to authorize the detention of a person during an investigation.

Magistrate may withdraw case from inquirer.

119. Any Magistrate having jurisdiction to hold an inquiry into any offence which is being investigated by an inquirer may at any stage withdraw the case from such inquirer and himself inquire into and try such case or commit the same for trial.

Investigation to be completed without delay.

120.

(1) Every investigation under this Chapter shall be completed without unnecessary delay. Where such investigation cannot be completed within fifteen days the officer in charge of the police station or the inquirer shall transmit to the Magistrate’s Court having jurisdiction in the case, a report of the facts and the progress of the investigation at the end of the fifteen days and thereafter at the end of every period of fifteen days until completion of the investigation.

(2) The detention ordered under subsection (3) of section 115 shall be for periods of fifteen days at a time.

(3) As soon as the investigation is completed the officer in charge of the police station shall forward to such court a report in the prescribed form. If in the report there is no allegation that the suspect has committed or been concerned in the committing of any offence the Magistrate shall discharge him. If the report alleges that the suspect has committed or been concerned in committing an offence he shall be prosecuted in accordance with the provisions of this Code.

Powers of this Chapter to be cumulative.

121. Anything in this Chapter contained shall not be construed to restrict the powers or duties vested in or imposed on police officers by this Code or any other enactment.

Examination by medical practitioner.

122.

(1) Where any officer in charge of a police station considers that the examination of any person by a medical practitioner is necessary for the conduct of an investigation he may, with the consent of such person, cause such person to be examined by a Government medical officer. The Government medical officer shall report to the police officer setting out the result of the examination.

(2) Where the person referred to in subsection (1) does not consent to being so examined, the police officer may apply to a Magistrate within whose jurisdiction the investigation is being made for an order authorizing a Government medical officer named therein to examine such person and report thereon. Where such an order is made such person shall submit to an examination by such Government medical officer who shall report to the Magistrate setting out the result of the examination.

Taking of finger impressions, specimens of hair c. of suspect person.

123.

(1) Where any officer in charge of a police station is of opinion that it is necessary to do so for the purpose of an investigation, he may cause any finger, palm or foot impression or impression of any part of the body of any person suspected of the offence under investigation or any specimen of saliva, urine, hair or finger nail or any scraping from a finger nail of such person to be taken with his consent.

(2) Where the person referred to in subsection (1) does not consent to such impression, specimen or scraping being taken, such police officer may apply to the Magistrate’s Court within whose jurisdiction the investigation is being made for an order authorizing a police officer to take such impression, specimen or scraping and such person shall comply with such order.

(3) Any officer in charge of a police station may, where it is necessary for the purpose of the investigation to compare any handwriting, cause a specimen of the handwriting of any person to be taken with his consent.

(4) Where such person refuses to give a specimen of his handwriting the officer in charge of the police station may apply to the Magistrate’s Court within whose jurisdiction the investigation is being made for an order requiring such person to give a specimen of his handwriting, and such person shall comply with such order.

Magistrate to assist investigation.

124. Every Magistrate to whom application is made in that behalf shall assist the conduct of an investigation by making and issuing appropriate orders and processes of court, and may, in particular hold, or authorize the holding of, an identification parade for the purpose of ascertaining the identity of the offender, and for such purpose require a suspect or any other person to participate in such parade, and make or cause to be made a record of the proceedings of such parade.

Senior police officer may take over investigation.

125. Anything to the contrary in this or any other law notwithstanding it shall be lawful for any police officer not below the rank of Assistant Superintendent of Police to take over at any stage any investigation under this Chapter for any offence and to conduct and direct such investigation and for such purpose to cause the investigation or any part of it to be conducted by any police officer of his choice or by a team of specially selected police officers drawn from any part of the Island.

CHAPTER XII
STATEMENTS TO MAGISTRATES OR PEACE OFFICERS
No inducement to be offered.

126. Except as provided in Chapter XXI any peace officer or person in authority shall not offer or make or cause to be offered or made any inducement, threat, or promise to any person charged with an offence to induce such person to make any statement having reference to the charge against such person. But any peace officer or other person shall not prevent or discourage by any caution or otherwise any person from making any statement which he may be disposed to make of his own free will.

Power to record statements and confessions.

127.

(1) Any Magistrate may record any statement made to him at any time before the commencement of any inquiry or trial.

(2) Such statement shall be recorded and signed in the manner provided in section 277 and dated, and shall then be forwarded to the Magistrate’s Court by which the case is to be inquired into or tried.

(3) A Magistrate shall not record any such statement being a confession unless upon questioning the person making it he has reason to believe that it was made voluntarily, and when he records any such statement he shall make a memorandum at the foot of such record to the following effect: –

I believe that this statement was voluntarily made. It was taken in my presence and hearing and was read over by me to the person making it and admitted by him to be correct, and it contains accurately the whole of the statement made by him.

(Signed) A. B. Magistrate of the Magistrate’s Court,

PART VI
PROCEEDINGS IN PROSECUTIONS
CHAPTER XIII
OF THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
A – PLACE OF INQUIRY OR TRIAL
Ordinary place of inquiry and trial .

128. Ordinary place of inquiry and trial

(1) Every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed.

(2) Any Magistrate’s Court within the local limits of the jurisdiction of which an accused may be or be found shall have jurisdiction respectively in all cases of offences otherwise within their respective jurisdictions which have been committed on the territorial waters of Sri Lanka.

(3) An offence committed on the territorial waters of Sri Lanka to which subsection (2) is not applicable or an offence committed on the high seas, or on board any ship or upon any aircraft may be tried or inquired into by the Magistrate’s Court of Colombo if it otherwise has jurisdiction or on indictment by the High Court.

Accused is triable in where act is done or consequence ensues.

129. When a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued, such offence may be inquired into or tried by any court within the local limits of the jurisdiction of which any such thing has been done or any such consequence, has ensued.

Illustrations

(a) A is wounded within the local limits of the jurisdiction of the Magistrate’s Court of X and dies within those of the Magistrate’s Court of Z ; the offence of culpable homicide of A may be inquired into by the Magistrate’s Court of either X or Z.

(b) A is wounded within the local limits of the jurisdiction of the Magistrate’s Court of X and is during ten days within the local limits’ of the Jurisdiction of Magistrate’s Court Y. and during ten days more within the local jurisdiction of Magistrate’s Court Z, unable in the local limits of the jurisdiction of Magistrate’s Court Y or 2 to follow his ordinary pursuits; the offence of unlawfully causing grievous hurl to A may be tried by the Magistrate’s Court of either X, Y, or Z.

(c) A is put in fear of injury within the local limits of the jurisdiction of the Magistrate’s Court of X and is thereby induced within the local limits of the jurisdiction of the Magistrate’s Court of Y to deliver property to the person who put him in fear; the offence of extortion committed on A may be tried by the Magistrate’s Court of either X or Y.

Place of trial where act is an offence by reason of relation to other offence.

130. When an act is an offence by reason of the relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a court within the local limits of the jurisdiction of which either act was done.

Illustrations

(a) A charge of abetment may be inquired into or tried either by the court within the local limits of whose jurisdiction the abetment was committed or by the court within the local limits of whose jurisdiction the offence abetted was committed.

(b) A charge of receiving or retaining Stolen goods may be tried either by the court within the local limits of whose jurisdiction the goods were stolen or by the court within the local limits of whose jurisdiction any of them were at any time dishonestly received or retained.

(c) A charge of wrongfully concealing a person known to have been kidnapped may be tried by the Magistrate’s Court within the local limits of whose jurisdiction the wrongful concealing or by the Magistrate’s Court within the local limits of whose Jurisdiction the kidnapping look place.

Escape from custody.

131.

(1) The offence of having escaped from custody may be tried either by the court within the local limits of whose jurisdiction the person charged is or by the court within the local limits of whose jurisdiction the offence was committed.

Criminal misappropriation and criminal breach of trust.

(2) The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried either by the court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received by the accused person or by the court within the local limits of whose jurisdiction the offence was committed.

Stealing.

(3) The offence of stealing anything may be inquired into or tried by any court within the local limits of whose jurisdiction such thing was stolen or was possessed by the thief or by any person who receives or retains the same knowing or having reason to believe it to be stolen.

Place of inquiry or trial in various cases.

132.

(1)

(a) When it is uncertain in which of several local areas an offence was committed ; or

(b) where an offence is committed partly in one local area and partly in another; or

(c) where an offence is a continuing one and continues to be committed in more local areas than one; or

(d) where an offence consists of several acts done in different local areas; or

(e) where in the course of the same transaction different offences are committed in different local areas.,

such offence or offences may be inquired into or tried by a court having jurisdiction over any one of such local areas.

Offences committed on a journey.

(2) An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a court through or into the local limits of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed passed in the course of that Journey or voyage.

Offences against provisions of any law relating to railways, telecommunications, post office, arms and ammunition.

(3) All offences against the provisions of any law for the time being in force relating to railways, telecommunications, the post office, or arms and ammunition may be inquired into or tried by any court, whether the offence is stated to have been committed within the local limits of the jurisdiction of such court or not, provided that the offender is found within such local jurisdiction.

Attorney-General to decide, in case of doubt court where inquiry shall take place.

133. Whenever any doubt is entertained by a Magistrate as to the Magistrate’s Court by which any offence should be inquired into, such Magistrate may embody the ascertained facts in the form of a case and transmit the same to the Attorney-General for his opinion, and the Attorney-General shall thereupon decide in which court the offence shall be inquired into and such court shall thereupon have jurisdiction to inquire into such offence.

Sentence not to be set aside because inquiry held by wrong Magistrate’s Court.

134. Any sentence or order of any criminal court in the trial of an offence shall not be liable to be set aside merely on the ground that the inquiry into the commission of the offence to which the sentence or order relates was made by a Magistrate’s Court not empowered under this Chapter so to do.

B. – CONDITIONS NECESSARY FOR INITIATING PROCEEDINGS
The conditions necessary for the initiation of prosecutions for certain offences.

135.

(1) Any court shall not take cognizance of –

(a) any offence punishable under sections 170 to 185 (both inclusive) of the Penal Code except with the previous sanction of the Attorney-General or on the complaint of the public servant concerned or of some public servant to whom he is subordinate;

(b) any offence punishable under sections 158, 159, 160, 161,210,211 and 212 of the Penal Code except with the previous sanction of the Attorney-General;


[7,52 of 1980.]

(c) any offence punishable under sections 190, 193, 196, 197, 202, 203, 204, 205, 206, 207 and 223 of the Penal Code when such offence is committed in or in relation to any proceeding in any court except with the previous sanction of the Attorney-General or on the complaint of such court ;

(d) any offence described in section 452 or punishable under sections 459, 463 and 464 of the Penal Code when such offence has been committed by a party to any proceeding in any court, in respect of a document given in evidence in such proceeding except with the previous sanction of the Attorney-General or on the complaint of such court;


[7,52 of 1980.]

(e) any offence punishable under section 290A or section 291B of the Penal Code unless upon complaint made by the Attorney-General or by some other person with the previous sanction of the Attorney-General;

(f) any offence falling under Chapter XIX of the Penal Code unless upon complaint made with the previous sanction of the Attorney-General by some person aggrieved by such offence or by some other person with the like sanction;

(g) any offence punishable under section 291A of the Penal Code, unless upon complaint made with the previous sanction of the Attorney-General by some person aggrieved by such offence or by some other person with the like sanction.

(2) The complaint of a court shall be in writing under the hand of the Registrar of the court.

(3) Where complaint is made by a court such court may cause the accused to be arrested and sent in custody before the Magistrate’s Court having jurisdiction.

(4) When sanction is given in respect of any offence referred to in this section the court taking cognizance of the case may frame a charge of any other offence so referred to which is disclosed by the facts, but such sanction shall not remain in force for more than six months from the date on which it was given.


[7,52 of 1980.]

(5) In this section the expression ” some other person shall be deemed to include a peace officer.


[7,52 of 1980.]

(6) This section shall not apply to any case in which the Attorney-General has exercised his powers under section 393 (7).

CHAPTER XIV
OF THE COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES COURTS
Proceedings in Magistrate’s Court how instituted.

136.

(1) Proceedings in a Magistrate’s Court shall be instituted in one of the following ways: –

(a)on a complaint being made orally or in writing to a Magistrate of such court that an offence has been committed which such court has jurisdiction either to inquire into or try:

Provided that such a complaint if in writing shall be drawn and countersigned by a pleader and signed by the complainant; or

(b) on a written report to the like effect being made to a Magistrate of such court by an inquirer appointed under Chapter XI or by a peace officer or a public servant or a servant of a Municipal Council or of an Urban Council or of a Town Council; or

(c) upon the knowledge or suspicion of a Magistrate of such court to the like effect:

Provided that when proceedings are instituted under this paragraph the accused or when there are several persons accused any one of them, shall be entitled to require that the case shall not be tried by the Magistrate upon whose knowledge or suspicion the proceedings were instituted, but shall either be tried by another Magistrate or committed for trial; or

(d) on any person being brought before a Magistrate of such court in custody without process, accused of having committed an offence which such court has jurisdiction either to, inquire into or try; or

(e) upon a warrant under the hand of the Attorney-General requiring a Magistrate of such court to hold an inquiry in respect of an offence which such court has jurisdiction to inquire into; or

(f) on a written complaint made by a court under section 135.

(2) The written report under paragraph (b), the warrant of the Attorney-General under paragraph (e), and the written complaint under paragraph (f) of subsection (1) may be forwarded by post or by messenger to the Magistrate’s Court or delivered by hand to a Magistrate of such court and shall form part of the proceedings.

(3) Except as herein provided any written complaint shall not be entertained by a Magistrate.

Medical examination complainant and accused in case of rape,&c.

137. In cases where the offence complained of is one of rape, carnal intercourse with a young girl, unnatural offence, or hurt of a serious nature or hurt whether serious or not alleged to have been caused by an instrument for stabbing or cutting, the Magistrate shall cause the person who is alleged to have been the subject of such rape, carnal intercourse, unnatural offence, or hurt, and the person accused of such rape, carnal intercourse or unnatural offence to be forthwith examined by a Government medical officer if he has not already been so examined.

Procedure in certain cases where accused is unknown.

138.

(1) Where the offence alleged in any proceedings instituted under section 136 (1) (a) or section 136 (1) (b) is not one triable summarily by him, the Magistrate may, although no person by name is accused of having committed such offence, examine on oath the complainant or informant and any other person who may appear to the Magistrate to be able to speak to the facts of the case. Such examination may if the Magistrate thinks fit be held in private.

(2) Every examination held by the Magistrate under subsection (1) shall be reduced into writing and after being read over and if need be interpreted to the person examined shall be signed by him and also by the Magistrate and dated.

(3) If, after such examination, there is in the opinion of the Magistrate sufficient ground for proceeding against any person, he shall issue process against such person in the manner provided by section 139.

Issue of process.

139.

(1) Where proceedings have been instituted under paragraph (a) or paragraph (A) or paragraph (c) of section 136 (1) and the Magistrate is of opinion that there is sufficient ground for proceeding against some person who is not in. custody –

(a) if the case appears to be one in which according to the fourth column of the First Schedule a summons should issue in the first instance, he shall, subject to the provisions of section 63, issue a summons for the attendance of such person;

(b) if the case appears to be one in which according to that column a warrant should issue in the first instance, he shall issue a warrant for causing such person to be brought or to appear before the court at a certain time :

Provided that –

(i) the Magistrate may in any case, if he thinks fit, issue a summons in the first instance instead of a warrant;

(ii) in any case under paragraph (a) or paragraph (b) of section 136 (1), the Magistrate shall, before issuing a warrant, and may, before issuing a summons, examine on oath the complainant or some material witness or witnesses; and

(iii) in any case under paragraph (c) of section 136 (1), the Magistrate shall, before issuing process, record a brief statement of the facts which constitute his means of knowledge or of the grounds of his suspicion, as the case may be.

(2) Where proceedings have been instituted under paragraph (f) of section 136 (1), the Magistrate shall forthwith examine on oath or affirmation the person who has brought the accused .before the court and any other person who may be present in court able to speak to the facts of the case:

Provided that such examination shall not be necessary where the Magistrate has before him a report of the facts of the case or a complaint in writing has been filed.

(3) Where proceedings have been instituted under paragraph (e) or paragraph (f) of section 136 (1), the Magistrate shall issue a summons for the attendance of the person named in the warrant or complaint, or a warrant for causing such person to be brought or to appear before the court at a certain time, according as the fourth column of the First Schedule provides that the case is one in which a summons or a warrant should issue in the first instance.

Contents of summons or warrant.

140. Every summons or warrant issued under section 139 shall contain a statement of the particulars of the offence charged and in the case of a summons shall require the accused to appear at a time and place therein specified to answer the charge therein set forth.

Examination under section 139 to be recorded.

141. Every examination held by the Magistrate under section 139 shall be recorded in the manner provided in section 138 (2).

Such examination may if the Magistrate thinks fit be held in private.

Procedure to be adopted when case proceeds.


[8,2 of l980.]

142.

(1) Where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act, or where the Attorney-General has under section 145 (b) or section 393 (7) (b) directed the Magistrate to hold a preliminary inquiry, the Magistrate shall follow the procedure laid down in Chapter XV.

(2) Where the offence appears to be one triable summarily in a Magistrate’s Court the Magistrate shall follow the procedure laid down in Chapter XVII:

Provided that if the Magistrate is of opinion that the offence cannot be adequately punished by a Magistrate’s Court he shall forthwith stop further proceedings and forward the record of the case to the Attorney-General, and thereafter abide the instructions of the Attorney-General.

In case of homicide Magistrate to hold inquiry on spot.

143. If in a proceeding instituted under section 136 the case appears to be one of culpable homicide the Magistrate shall, unless for reasons to be recorded by him he thinks it inexpedient, go to the spot where such offence appears to have been committed and if the accused be present before him shall proceed to hold such part of the inquiry directed by Chapter XV as may be necessary, and if the accused be not present shall hold an examination of such persons as may seem to him to be able to give material evidence.

Such examination shall be recorded in the manner provided in section 138 (2).

When issuing summons personal attendance of the accused may be dispensed with.

144. Whenever a Magistrate issues a summons he may in his discretion dispense with the personal attendance of the accused and permit him to appear by a pleader:

Provided always that the Magistrate may in his discretion at any stage of the proceedings direct the personal attendance of the accused and enforce his attendance in manner hereinbefore provided.

CHAPTER XV
OF THE INQUIRY INTO CASES WHICH APPEAR NOT TO BE TRIABLE SUMMARILY BY MAGISTRATE’S COURT BUT TRIABLE BY THE HIGH COURT
Preliminary inquiry.

145. When the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case –

(a) where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or

(b) where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be -necessary for preparing an indictment, within three months of the date of the commission of the offence so directs,

hold a preliminary inquiry according to the provisions hereinafter mentioned.

Accused to be Informed of charge.

146. A Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry read over to the accused the charge or charges in respect of which the inquiry is being held, but upon such reading over the accused shall not be required to make any reply thereto; if any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.

Information Book entries to be tendered.

147. The officer in charge of the police station where the relevant Information Book is kept shall at the commencement of the inquiry furnish to the Magistrate two certified copies of the notes of investigation and of all statements recorded in the course of the investigation.

Depositions.

148.

(1) The Magistrate shall then take, in the presence of the accused and in the manner hereinafter provided, the statements on oath or affirmation of those who know the facts and circumstances of the case, and put them in writing (called the depositions):

Provided that the Magistrate shall not except where the Attorney-General otherwise directs summon and record the evidence of any expert witness but shall only cause such witness’s report to be produced and filed of record.

(2) Subject to the proviso to subsection (1) the accused may put questions to each witness produced against him and the answer of the witness thereto shall be part of his deposition.

(3) If the accused is not represented by an attorney-at-law the Magistrate shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any questions to the witness.

Depositions where the accused is absconding or abroad.

(4)

(a) Where the accused –

(i) is absconding or has left the island ; or

(ii) is unable to attend or remain in court by reason of illness and other his consented to the commencement or continuance of the inquiry in his absence or such inquiry may commence or continue without any prejudice to him ; or

(iii) by reason of his conduct in court is obstructing or impeding the progress of the inquiry,

the Magistrate may, if satisfied of these facts, commence and proceed or continue with the inquiry in the absence of the accused.

(b) An attorney-at-law may appear for such absent accused.

(c) The inquiry shall proceed as far as is practicable in accordance with the provisions of this Chapter and section 416 shall apply to the depositions recorded where there is a trial on indictment in the High Court whether the accused is present in the High Court or not.

Variance between charge and evidence.

149.

(1) Any variance between facts stated in the charge read over to the accused under section 146 and the evidence adduced in support thereof as to the time or place at which the offence or act is alleged to have been committed shall not be deemed material if it be proved, in the case of the time, that the charge was in fact laid within the time limited by law for laying the same and, in the case of the place, that the jurisdiction of the court is not ousted thereby.

(2) Any variance in any other respect between the facts stated in the charge and the evidence adduced in support thereof shall not be material:

Provided that the accused shall not be convicted of any offence other than that with which he has been charged unless such other offence is one of which he may be lawfully convicted under the provisions of this Code upon the trial of the offence with which he is charged.

(3) Where any variance as is mentioned in this section appears to the Magistrate to be such that the accused has been thereby deceived or misled, the Magistrate may upon such terms as he shall think fit adjourn the inquiry to some further day.

(4) Upon any such variance appearing the Magistrate may make such amendment of the charge as he deems fit and may permit any witness to be recalled and further questioned upon any matters relevant to the variance or amended charge.

Charges to be read to accused after close prosecution case.

150. After the examination of the witnesses called on behalf of the prosecution and provided’ that the Magistrate does not consider that the case should be dealt with of in accordance with the provisions of section 153, the Magistrate shall read the charge to the accused and explain the nature thereof in ordinary language and inform him that he has the right to call witnesses and, if he so desires, to give evidence on his own behalf.

Provisions as to taking statement of accused.

151.

(1) The Magistrate shall then address to the accused the following words or words to the like effect; –

” Do you wish to say anything in answer to the charge ? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and put in evidence at your trial “.

(2) Before the accused makes any statement in answer to the charge, the Magistrate shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may be held out to him to induce him to make any admission or confession of his guilt, but that whatsoever he then says will be given in evidence at his trial, notwithstanding the promise or threat.

(3) Any statement the accused makes in answer to the charge shall be recorded in the manner provided by section 277.

Evidence for the defence.

152.

(1) Immediately after complying with the requirements of section 15.1 relating to the statement or the accused, and whether the accused has or has not made a statement, the Magistrate shall ask the accused whether he desires to give evidence on his own behalf and whether he desires to call witnesses.

(2) If the accused in answer to the question states that he wishes to give evidence but not to call witnesses, the Magistrate shall proceed to take forthwith the evidence of the accused, and after the conclusion of the evidence of the accused, his attorney-at-law (if the accused is represented) shall be heard on his behalf, if he so desires.

(3) If the accused in. answer to the question states that he desires to give, evidence on his own behalf and to call witnesses, or to call witnesses only, the Magistrate shall proceed to take either forthwith, or, if a speech is to be made by an attorney-at-law on behalf of the accused, after the conclusion of the speech, the evidence of the accused, if he desires to give evidence himself, and of any witness called by him who knows anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.

(4) If the accused states that he has witnesses to call, but that they are not present in court, and the Magistrate is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused, the Magistrate may adjourn the inquiry and issue process or take other steps to compel the attendance of such witnesses.

(5) Evidence given by the accused or any such witness as aforesaid shall be taken down in writing and the provisions of section 148 shall apply in the case of witnesses for the defence as they apply in the case of witnesses for the prosecution, except that the Magistrate shall not bind over to attend the trial any witness who is a witness merely to the character of the accused.

Discharge.

153.

(1) If the Magistrate considers that the evidence against the accused is not sufficient to put him on his trial, the Magistrate shall forthwith for reasons to be recorded by him order him to be discharged as to the particular charge under inquiry; but such discharge shall not be a bar to any subsequent charge in respect of the same facts:

Provided that nothing contained in this section shall prevent the Magistrate from either forthwith or after such adjournment of the inquiry as may seem expedient in the interests of justice, proceeding to investigate any other charge upon which the accused may have been summoned or otherwise brought before him, or which, in the course of the charge so dismissed as aforesaid, it may appear that the accused has committed.

(2) Anything in this section shall not be deemed to prevent the Magistrate from discharging the accused at any stage of the case if for reasons (to be recorded by him) he considers the complaint to be groundless.

Commitment for trial.

154. If the Magistrate considers the evidence sufficient to put the accused on his trial, the Magistrate shall commit him for trial before the High Court.

Accused’s witnesses.

155.

(1) The Magistrate shall at the time of committing the accused for trial require the accused to state orally there and then the names of persons (if any) whom he wishes to be required to give evidence at his trial, distinguishing between those whom he proposes to call to speak to facts and those who are merely to speak to character.

(2) The Magistrate shall prepare a list of such of the witnesses named by the accused under subsection (1) as have not already given evidence before him and shall direct the Fiscal to issue a notice on each such witness requiring him to appear before the court of trial on the date specified in the notice:

Provided, however, that the Magistrate may exclude from such list the name of any witness if he is of opinion that the evidence of such witness is not material.

(3) Where any witness on whom a notice under subsection (2) has been served fails to appear in the court of trial as directed by such notice, that notice shall, for the purpose of the application of sections 63 and 64, be deemed to be a summons which the court of trial is empowered to issue and the provisions of those sections shall apply accordingly,

(4) Service of any notice under this section shall be effected in the manner provided for the service of summons in sections 45 and 46 and the provisions of section 49 shall apply accordingly for the purpose of proving such service:

Provided that if service cannot be effected in such manner by the exercise of due diligence, the notice shall be affixed to some conspicuous part of the house or homestead in which the witness ordinarily resides, and in such case the notice shall be deemed to have been duly served.

Material witnesses to be bound over to appear.

156.

(1) When the Magistrate commits the accused for trial he shall require every material witness for the prosecution or defence who has appeared before him and given evidence and who has not already been bound over, to execute a bond with or without sureties for his appearance to give evidence at the trial and, if required, at any, further examination concerning the charge against the accused which may be held by the direction of the Attorney-General; and for the like purpose it shall be lawful for any Magistrate who examines any witness on commission under the provisions hereinafter contained to require such witness so examined to execute a bond with or without sureties as such Magistrate may determine.

(2) The Magistrate may at any stage of the inquiry require any witness to execute such bond as in the last subsection mentioned for appearance at any further stage of the proceedings either in that court or in the High Court, in case the accused be committed for trial. It shall not be necessary to specify the sessions of the High Court in the bond, but the obligor shall be bound on receiving reasonable notice to attend at the trial in whatever sessions of the High Court the accused may be tried.

(3) If a witness refuses or neglects to execute such bond the Magistrate may commit him to prison until such bond is duly executed or until the trial, when he shall be sent in custody to the court of trial.

(4) The Magistrate shall endorse on the warrant of committal the names of all persons who have been bound over under this section or who having refused to be bound over have been committed to prison.

(5) Every person who executes such bond shall give to the Magistrate an address at which all notices respecting the further proceedings in the case may be left for him, and any notice left at such address for him shall (until the contrary be proved) be deemed to have been received by him.

Magistrate to certify record.

157. The Magistrate shall if the accused is committed for trial record whether the accused is on bail or in custody and certify under his hand the record of the inquiry.

Accused entitled to statements to the police.


[9,52 of 1980. ]

158.

(1) When an accused has been committed for trial he shall, if he demands it at a reasonable time before the trial, he furnished with a certified copy of the statements to the police of the witnesses who have testified before the Magistrate and of the statements (if any) to the police of the accused, by the officer-in-charge of the police station where the relevant books are kept, on payment therefor at such rate as may be prescribed by the Minister by regulation:

Provided that until a rate is so prescribed the rate shall be twenty-five cents for a hundred words.

(2) When an indictment has been forwarded against any person in respect of an offence which is not shown to be triable by a Magistrate’s Court in the eighth column of the First Schedule, the Attorney-General may, in the interests of justice, make available to the accused or to his attorney-at-law, for perusal the statement to the police of any witness not listed in the indictment.

Record to be forwarded to court of trial, and certified copy of record to Attorney-General.

159.

(1) When the Magistrate commits the accused for trial he shall, subject to the provisions of this Code regarding the taking of bail by warrant addressed to the Superintendent of any prison, commit the accused to the custody of the said Superintendent until and during the trial.

(2) The Magistrate shall forthwith transmit –

(a) to the High Court –

(i) the record of the inquiry together with all documents and things produced in evidence ; and

(ii) a copy certified under his hand of such record and of such documents; and

(iii) one of the certified copies of the notes of investigation and of statements furnished by the officer in charge of the police station;

(b) to the Attorney-General –

(i) a copy certified under his hand of the record of inquiry and of all the documents produced in evidence together with as many of such certified copies as there are accused; and

(ii) one of the certified copies of the notes of investigation and of statements furnished by the officer-in-charge of the police station.

(3) The provisions of section 264 shall apply to every warrant issued under this section.

Presentation and service of indictment.

160.

(1) If after the receipt by him of the certified copy of the record of an inquiry, the Attorney-General is of opinion that the case is one which should be tried upon indictment before the High Court, an indictment shall be drawn up and when signed in accordance with the provisions of section 162 (3) shall be forwarded to and filed in the High Court.

(2) The fact that the indictment has been So signed, forwarded, and filed shall be equivalent to a statement that all conditions required by law to constitute the offence charged and to give such court jurisdiction have been fulfilled in the particular case.

(3) The Attorney-General may, subject to the provisions of this Code relating to the joinder of charges, substitute or include in the indictment any charge in respect of any offence which is disclosed by the evidence taken by the Magistrate, notwithstanding that such charge was not read to the accused by the Magistrate.

When trial shall be by jury and when not.

161. Subject to the provisions of this Code and any other written law in every case where at least one of the offences falls within the list of offences set out in the Second Schedule to the Judicature Act, or in any case where the Attorney-General having regard to the nature and circumstances of the offence determines that the trial should be held in the High Court by a jury, trial shall be on indictment in the High Court by a jury. In every other case and whether there was a preliminary inquiry under this Chapter or not, trial shall be on indictment in the High Court without a jury.

Contents of indictment.

162.

(1) Every indictment for trial in the High Court whether with or without a. jury shall contain a list of witnesses whom the prosecution intends to call and another list of documents and things intended to be produced at the trial which documents and things shall be called ” productions “.

But anything in this subsection shall not be deemed or construed to debar the prosecution after notice to the accused, from calling any witness or producing any document or thing not specified in the indictment.

(2) To every indictment shall be attached the following documents: –

(a) where there was a preliminary inquiry under this Chapter a certified copy of the record of inquiry and of the documents and of the inquest proceedings if there had been an inquest;


[10, 52 of 1980.]

(b) where there was no preliminary inquiry under this Chapter, copies of statements to the police, if any, of the accused and the witnesses listed in the indictment;

(c) copies of all reports and sketches listed in the indictment;

(d) copies of the notes of any identification parades that may have been held during the investigation of the case ;

(e) copies of any statements made to the Magistrate under section 127 by –

(i) the accused ; and

(ii) any witness listed in the indictment; and

(f) copies of such portion of the notes, containing the observations of the scene of offence, made during the investigation of the offence by a police officer.

(3) The indictment shall be in the prescribed form and shall be brought in the name of the Attorney-General and shall be signed by the Attorney-General or the Solicitor-General or a State Counsel.

(4) The proceedings shall not abate or determine by reason of the death or removal from office of the Attorney-General.

Inquiry to be concluded in a month.

163. Every inquiry held under this Chapter shall be concluded within one month of the commencement of the proceedings unless the Magistrate, for reasons to be recorded by him, finds it necessary to prolong the inquiry beyond the period of one month.

CHAPTER XVI
OF THE CHARGE
Charge to state offence.

164.

(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 it 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 stated as will give the accused notice of the matter with which he is charged.

(4) The law and section of the law under which the offence said to have been committed is punishable 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 when it is preferred, whether at the inquiry preliminary to committal for trial or at the trial, be read to the accused in a language which he understands.

Illustrations

(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 293 and 294 of the Penal Code ; that it did not fall within any of the general exceptions of the same Code and that it did not fall within any of the five exceptions to section 294. or that if it did fall within exception ‘, one or other of the three provisos to that exception applied to it.

(b) A is charged under section 317 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 326 of the Penal Code and that the general exception did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, criminal intimidation or using a false property-mark. The charge may slate that A committed murder or cheating or theft or extortion or criminal intimidation, or that he used a false property-mark without reference to the definitions of those crimes contained in the Penal Code.

(d) A is charged under section 182 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 these words.

Particulars as to time-place person.

165.

(1) The charge shall contain such particulars as to the time and place of the alleged offence and as to the person (if any) against whom and as to 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 and to show that the offence is not prescribed.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of movable property, it shall be sufficient to specify the gross sum or, as the case may be, the gross quantity 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 174:

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

When manner of committing offence must be stated.

(3) When the nature of the case is such that the particulars mentioned in section 164 and the preceding subsections of this section 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 a given time and place. The charge must set out the manner in which A 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 manner 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.

What sense to be attached to words used in describing an offence.

(4) In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.

Effect of errors.

166. Any error in stating either the offence or the particulars required to be stated in the charge and any omission to state the offence or those particulars shall not be regarded at any stage of the case as material, unless the accused was misled by such error or omission.

illustrations

(a) A is charged under section 237 of the Penal Code with ” having been in possession of counterfeit coin having known at the time when he became possessed thereof that such coin was counterfeit “, the word ” fraudulently ” being omitted in the charge. Unless it appears that A 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. A 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 B 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 this case material.

Court may alter charge.

167.

(1) Any court may alter any indictment or charge at any time before judgment is pronounced or, in the case of trials before the High Court by a jury, before the verdict of the jury Is returned.

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

(3) The substitution of One charge for another in an indictment or the addition of a new charge to an indictment and in a Magistrate’s Court the substitution of one charge for another or the addition of a new charge shall be deemed to be an alteration of such indictment or charge within the meaning of this section.

when trial may proceed on altered charge immediately.

168. If the alteration made under section 167 is such that proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may in its discretion after such alteration has been made, proceed with the trial as if the altered indictment or charge had been the original indictment or charge.

When new trial may be directed or trial adjourned.

169. If the alteration made under section 167 is such that proceeding immediately with the trial is likely in the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or adjourn the trial for such period as may be necessary.

Stay of proceedings if prosecution of offence in altered charge requires previous sanction.

170. If the indictment or charge as altered under section 167 alleges an offence for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered indictment or charge is founded.

Recall of witnesses when altered.

171. Whenever an indictment or charge is altered by the court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summon and examine with reference to such alteration any witnesses who may have been examined.

Effect of material error.

172.

(1) If the Supreme Court or the Court of Appeal in the exercise of its powers of appeal or revision is of opinion that any person convicted of an offence was misled in his defence by an error in the indictment or charge, it shall direct a new trial to be had upon a charge or indictment framed in whatever manner it thinks fit or make such other order as the justice of the case may require.

(2) If such court is of opinion that the facts of the case are such that any valid charge cannot be preferred against the accused in respect of the facts proved or where the circumstances so warrant, it shall quash the conviction.

Illustration

A is convicted of an offence under section 193 of the Penal Code upon a charge which omits to state that he knew the evidence which he corruptly used or attempted to use as true or genuine was false or fabricated. If the court thinks it probable that A 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 A had no such knowledge it shall quash the conviction.

JOINDER OF CHARGES
Separate charge of separate offence.

173. For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 174, 175, 176 and 180 which said sections may be applied either severally or in combination.

Illustration

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

Three offences of same kind within a year may be charged together.

174.

(1) When a person is accused of more offences than one of the same kind committed within the space of, twelve months from the first to the last of such offences he may be charged with and tried at one trial for any number of them not exceeding three, and in trials before the High Court such charges may be included in one and the same indictment.

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

Trial for more than one offence.

175.

(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, and in trials before the High Court such charges may be included in one and the same indictment.

Offence falling within definitions.

(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, and in trials before the High Court such charges may be included in one and the same indictment.

Acts constituting one offence but constituting another offence when combined.

(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence the 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 by any one or more of such acts and in trials before the High Court such charges may be included in one and the same indictment.

(4) Anything contained in this section shall not affect section 67 of the Penal Code.

Illustrations

To subsection (1):

(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was- A may be charged with and tried for offences under sections 220 and 324 of the Penal Code.

(b) 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 455 of the Penal Code. A may be separately charged with and convicted of the possession of each seal under section 461 of the Penal Code.

(c) A with intent to cause injury to B 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 accusation. A may be separately charged with and convicted of two offences under section 208 of the Penal Code.

(d) 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 accusation. On the trial A gives false evidence against B intending thereby to cause B to be convicted of a capital offence. A may be separately charged with and convicted of offences under sections 208 and 191 of the Penal Code.

(e) 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 under sections 144, 316 and 149 of the Penal Code.

(f) 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 486 of the Penal Code.

To subsection (2):

(g) A wrongfully strikes B with a cane. A may be separately charged with and convicted of offences under sections 343 and 314 of the Penal Code.

(h) Several stolen sacks of com arc 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 394 and 396 of the Penal Code.

(i) 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 308 and 297 of the Penal Code.

(j) A dishonestly uses a forged document as genuine evidence in order to convict B, a public servant, of an offence under section 163 of the Penal Code. A may be separately charged with and convicted of offences under sections 459 (read with 455) and 193 of the same Code,

To subsection (3):

(k) 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 314, 380 and 382 of the Penal Code.

The separate charges referred to in illustrations (a) to (k) respectively may be tried at one trial and included in one and the same indictment.

where it is doubtful what offence has been committed.

176. 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 will constitute, the accused may be charged with all or any one or more of such offences and any number of such charges may be tried at one trial and in a trial before the High Court may be included in one and the same indictment; or may be charged with having committed one of the said offences without specifying which one.

Illustration

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 one of the following offences, to wit, theft, receiving stolen property, criminal breach of trust, and cheating.

When a person charged with one offence maybe convicted of a different offence.

177. If in the case mentioned in section 176 the accused is charged 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 not charged with it.

Illustration

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 offence.

When offence proved included in offence charged.

178.

(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 such offence.

(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 was not charged with it and although jurisdiction to try such minor offence is exclusively vested in some other court.

(3) Anything in this section shall not be deemed to authorize a conviction for any offence referred to in section 135 when a complaint has not been made as required by that section.

Illustrations

(a) A is charged under section 390 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 389 in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under section 389.

(b) A is charged under section 316 of the Penal Code with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 326 of that Code.

Conviction of an attempt to commit an offence though attempt is not separately charged.

179. When a person is charged with an offence and it is proved that he attempted to commit that offence and that in such attempt he did an act towards the commission of that offence he may be convicted of an attempt to commit that offence although he was not charged with such attempt:

Provided that anything in this section shall not be deemed to authorize the conviction of any person for an attempt to commit an offence unless an attempt to commit that offence is made punishable by any written law for the time being in force in Sri Lanka.

All persons concerned in committing an offence may be charged together.

180. When more persons than one are accused of jointly committing the same offence or of different offences committed in the same transaction or when one person is accused of committing any offence and another of abetment of or attempt to commit such offence, they may be charged and tried together or separately as the court thinks fit; and the provisions contained in the former part of this Chapter shall apply to all such charges.

Illustrations

(a) A and B are accused of the same murder. A and B may be indicted and tried together for the murder.

(b) A and B are accused of a robbery in the course of which A commits a murder with which B had nothing to do. A and B may be tried together on an indictment charging both of them with the robbery and A alone with the murder.

(c) A and B are both charged with a theft and B is charged with two other thefts committed by ‘ him in the course of the same transaction. A and B may be both tried together on a charge charging both with one theft and B alone with the other two thefts.

(d) A and B are accused of being members of opposing factions in a riot. They should be indicted and tried separately.

(e) A and B are accused of giving false evidence in the same proceeding. They should be indicted and tried separately.

when convicted on one charge remaining charges may be withdrawn.

181.

(1) When more charges than one are made against the same person and when a conviction has Been had on one or more of them the officer conducting the prosecution may with the consent of the court withdraw the remaining charge or charges or the court of its own accord may stay the inquiry into or trial of such charge or charges.

(2) Such withdrawal shall have the effect of an acquittal on such charge or charges unless the conviction be set aside, in which case the said court (subject to the order of the court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so withdrawn.

CHAPTER XVII
*THE TRIAL OF CASES WHERE A MAGISTRATE’S COURT HAS POWER TO TRY SUMMARILY
Particulars of ease to be stated to accused.

182.

(1) Where the accused is brought or appears before the court the Magistrate shall if there is sufficient ground for proceeding against the accused, frame a charge against the accused.

(2) The Magistrate shall read such charge to the accused and ask him if he has any cause to show why he should not be convicted.

Admission of offence by accused.

183.

(1) If the accused upon being asked if he has any cause to show why he should not be convicted makes a statement which amounts to an unqualified admission that he is guilty of the offence of which he is accused, his statement shall be recorded as nearly as possible in the words used by him ; and the Magistrate shall record a verdict of guilty .and pass sentence upon him according to law and shall record such sentence:

Provided that the accused may with the leave of the Magistrate withdraw his plea of guilt at any time before sentence is passed upon him, and in that event the Magistrate shall proceed to trial as if a conviction has not been entered.

(2) If the accused does not make a statement or makes a statement which does not amount to an unqualified admission of guilt the Magistrate shall ask him if he is ready for trial and –

(a) if the accused replies that he is ready for trial shall proceed to try the case in manner hereinafter provided, but

(b) if the accused replies that he is not ready for trial by reason of the absence of witnesses or otherwise the Magistrate shall, subject to the provisions of subsection (3) of section 263, either postpone the trial to a day to be then fixed or proceed forthwith to try the case in manner hereinafter provided.

But anything herein contained shall not prevent the Magistrate from taking in manner hereinafter provided the evidence of the prosecution and of such of the witnesses for the defence as may be present, and then, subject to the provisions of subsection (3) of section 263 for reasons to be recorded by him in writing adjourning the trial for a day to be fixed by him.

Procedure on trial.

184.

(1) When the Magistrate proceeds to try the accused he shall take all such evidence as may be produced for the prosecution or defence respectively.

(2) The accused shall be permitted to cross-examine all witnesses called for the prosecution and. called or recalled by the Magistrate.

(3) The complainant and accused or their pleaders shall be entitled to open their respective cases, but the complainant or his pleader shall not be entitled to make any observations in reply upon the evidence given by or on behalf of the accused.

Verdict.

185. If the Magistrate after taking the Verdict. evidence for the prosecution and defence and such further evidence (if any) as he may of his own motion cause to be produced finds the accused not guilty, he shall forthwith record a verdict of acquittal. If he finds the accused guilty he shall forthwith record a verdict of guilty and pass sentence upon him according to law and shall record such sentence.

Power of Magistrate to discharge accused at any time.

186. Anything hereinbefore contained shall not be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, but he shall record his reasons for doing so :

Provided that, if the Magistrate is satisfied, for reasons to be recorded by him, that further proceedings in the case will not result in the conviction of the accused, he shall acquit the accused.

What to be done when different offence disclosed in course of proceedings.

187.

(1) If from the facts admitted or proved it appears that the accused has committed an offence within the jurisdiction of the Magistrate to try other than that specified in the charge, the Magistrate may convict the accused of such offence, but before he so convicts he shall frame a charge and shall read and explain it to the accused, and such of the provisions of Chapter XVI as relate to altered charges shall apply to the charge framed under this section.

(2) If from the facts admitted or proved it appears that the accused has committed an offence –

(a) falling within the list of offences set out in the Second Schedule to the Judicature Act, the Magistrate shall not convict but shall stay proceedings under this Chapter and commence the proceedings afresh under Chapter XV ; or

(b) not falling within the list of offences in that Schedule but still not triable summarily by him, the Magistrate shall not convict but shall stay proceedings and report the case to the Attorney-General and then abide his instructions.

Accused may be acquitted in the absence of complainant.

188.

(1) If the summons has been issued on a complaint under section 136 (1) (a) upon the day and hour appointed for the appearance of the accused or at any time to which the 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 hour or day, and may in addition make an order for payment by the complainant of State costs as hereinafter provided:

Provided that if the complainant appears in reasonable time and satisfies the Magistrate that his ‘absence was due to sickness, accident or some other cause over which he had no control, then the Magistrate shall cancel any order made under this subsection.

(2) If the summons has been issued on a complainant under section 136 (1) (b) or (c) as the case may be, and on the day fixed for trial the prosecution is not ready the court may discharge the accused unless for some reason the court thinks proper to adjourn the hearing of the case to some other hour or day.

(3) If the order of discharge referred to in subsection (2) has been made for the second time in respect of the same offence, such order of discharge shall amount to an acquittal.

withdrawal of charge by complainant.

189. If a complainant at any time before judgment is given in any case under this Chapter satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw the case the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused, but he shall record his reasons for doing so;

Provided, however, that anything herein contained shall not be taken to extend the powers of a Magistrate to allow the compounding of offences under the provisions of section 266.

Accused may be discharged by Magistrate with sanction of Attorney- General.

190. In any case tried under this Chapter otherwise than upon a complaint under section 136 (1), paragraphs (a), (c) and (d), the Magistrate may with the previous sanction of the Attorney-General, for reasons to be recorded by the Magistrate, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction and may thereupon discharge the accused.

By whom prosecution under this chapter maybe conducted.

191.

(1) Subject to subsection (2) the Attorney-General, the Solicitor-General, State Counsel or a pleader generally or specially authorized by the Attorney General shall be entitled to appear and conduct the prosecution in any case tried under this Chapter, but in the absence of the Attorney-General, the Solicitor-General, a State Counsel and any pleader as aforesaid the complainant or any officer of any Government Department or any officer of any Municipality, Urban Council or Town Council may appear in person or by pleader to prosecute in any case in which such complainant or Government Department or Municipality or Urban Council or Town Council is interested:


Provided that in the absence of the Attorney-General, the Solicitor-General, a State Counsel or a pleader generally or specially authorized by the Attorney-General, the Magistrate may, where an attorney-at-law does not appear for the complainant, permit any attorney-at-law to appear and conduct the prosecution on behalf of the person against whom or in respect of whom the accused is alleged to have committed the offence.

(2) If the complaint is one filed under paragraph (a) of subsection (1) of section 136, the Attorney-General, Solicitor-General, a State Counsel or pleader specially or generally authorized by the Attorney-General shall, except where such complaint has been filed against an officer or employee of the State in respect of a matter connected with or relating to the discharge of the official duties of such officer or employee, not have a right to appear for the complainant without his consent.

Trial may proceed in absence of accused.

192.

(1) Where the accused –

(a) is absconding or has left the Island ; or

(b) is unable to attend or remain in court by reason of illness and either had consented to the commencement or continuance of the trial in his absence or such trial may commence and proceed or continue in his absence without prejudice to him; or

(c) by reason of his conduct in court is obstructing or impeding the progress of the trial,

the Magistrate may, if satisfied of these facts, commence and proceed with the trial in the absence of the accused.

(2) Where in the course of or within a reasonable time of the conclusion of the trial of an accused person under paragraph (a) of subsection (1) the accused person appears in court and satisfies the court that his absence from the whole or part of the trial was bona fide, then –

(a) where the trial has not been concluded, the evidence led against the accused up to the time of his appearance before court shall be read to him and an opportunity afforded to him to cross-examine the witnesses who gave such evidence; and

(b) where the trial has been concluded, the court shall set aside the conviction and sentence, if any, and order that the accused be tried de novo.

(3) The provisions of subsection (2) shall not apply if the accused person had been defended by an attorney-at-law at the trial during his absence.

CHAPTER XVIII
TRIALS BY HIGH COURT
A – GENERAL
By whom Attorney trials High Court to be conducted.

193. In every trial before the High Court the prosecution shall be conducted by the General or the Solicitor-General or a State Counsel or by some pleader generally or specially authorized by the Attorney-General in that behalf.

Attorney- General may prosecution.

194.

(1) At any stage of a trial before the High Court under this Code before there turn of the verdict the Attorney-General may, if he thinks fit, inform the court that he will not further prosecute the accused upon the indictment or any charge therein, and thereupon all proceedings on such indictment or charge as the case may be against the accused shall be stayed and he . shall be discharged of and from the same.

(2) The information under this section may either be oral or in writing under the hand of the Attorney-General.

(3) The prosecuting counsel may with the consent of the presiding Judge at any stage of the trial before the return of the verdict withdraw the indictment or any charge therein and thereupon all proceedings on such indictment or charge as the case may be against the accused shall be stayed and he shall be discharged of and from the same.

Duty of Judge upon receipt of indictment.

195. Upon the indictment being received in the High Court, the Judge of the High Court presiding at the sessions of the High Court holden in the judicial zone whereat the trial is to be held shall –

(a) cause the accused to appear or to be brought before him;

(b) cause a copy of the indictment with its annexes to be served on each of the accused who will be tried upon that indictment;

(c) inform the accused of the date of trial

(d) subject to the provisions of section 403 direct the accused to execute a bond to appear in court for his trial or by warrant addressed to the superintendent of any prison authorize the detention of the accused pending his trial;

(e) cause the accused to be finger-printed and forward the prints to the Registrar of Finger Prints for examination and report to the prosecuting State Counsel;

(f) where trial is to be by a jury direct the accused to elect from which of the respective panels of jurors the jury shall be taken for his trial and inform him that he shall be bound by and may be tried according to the election so made;

(g) where the accused on being asked by court so requests, assign an attorney-at-law for his defence.

B – TRIAL BY JUDGE OF THE HIGH COURT WITHOUT A JURY
Commencement of Trial
Arraignment of accused.

196. When the court is ready to commence the trial the accused shall appear or be brought before it and the indictment shall be read and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged.

Plea of guilty.

197. If the accused pleads guilty and it appears to the satisfaction of the Judge that he rightly comprehends the effect of his plea, the plea shall be recorded on the indictment and he may be convicted thereon.

Refusal to plead or plea if not guilty.

198. If the accused does not plead or if he pleads not guilty, he shall be tried.

Counsel to open his case and call witnesses.

199.

(1) The trial shall commence by the prosecuting counsel stating his case to the court.

(2) The witnesses for the prosecution shall then be examined.

(3) All statements of the accused recorded in the course of the inquiry in the Magistrate’s Court, if there had been one, shall be put in and read in evidence before the close of the case for the prosecution.

(4) It shall be lawful for the court to call any witnesses not called ,by the prosecution if the interests of justice so require but such witnesses should be tendered for cross- examination by the prosecuting counsel and by the accused.

(5) The accused shall be permitted to cross-examine all witnesses called for the prosecution.

Court may acquit calling for defence, or call for defence.

200.

(1) When the case for the prosecution is closed, if the Judge wholly discredits The evidence on the part of the prosecution or is of opinion that such evidence fails to establish the commission of the offence charged against the accused in the indictment or of any other offence of which he might be convicted on such indictment, he shall record a verdict of acquittal; if however the Judge considers that there are grounds for proceeding with the trial he shall call upon the accused for his defence.

(2) If the accused or his pleader announces his intention not to adduce evidence, the prosecuting counsel may address the court a second time in support of his case for the purpose of summing up the evidence against the accused.

Accused may make his defence.

201.

(1) If the accused or his pleader announces his intention to adduce evidence, the accused or his pleader may enter upon his defence and may examine his witnesses (if any) and the accused person or his pleader may then sum up his case.

(2) The prosecuting counsel will be entitled to cross-examine ail the witnesses called by the defence to testify on oath or affirmation.

When prosecuting counsel entitled to call witnesses in rebuttal.

202. If any evidence is adduced on behalf of the accused the prosecuting counsel may with the leave of the Judge call witnesses in rebuttal.

Judge to pass judgment.

203. When the cases for the prosecution and defence are concluded, the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefor and if the verdict is one of. conviction pass sentence on the accused according to law.

C – TRIAL BY JURY
Commencement of Trial
Arraignment of accused.

204. When the court is ready to commence the trial the accused shall appear or be brought before it and the indictment shall be read and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged.

Plea of guilty may be recorded and accused convicted thereon.

205. If the accused pleads guilty and it appears to the satisfaction of the Judge that he rightly comprehends the effect of his plea, the plea shall be recorded on the indictment and he may be convicted thereon:

Provided that when the indictment so pleaded to is one of murder the Judge may refuse to receive the plea and cause the trial to proceed in like manner as if the accused person had pleaded not guilty.

Refusal to plead.

206. If the accused does not plead or if he pleads not guilty or if in the circumstances set out in the proviso to section 205, the Judge refuses to receive the plea jurors shall be chosen to try the case as hereinafter provided.

When accused pleads not guilty or is willing to plead guilty to a lesser offence.

207. If the accused pleads not guilty but states that he is willing to plead guilty to lesser offence for which he might have been convicted on that indictment and the prosecuting counsel is willing to accept such plea, the Judge may if he thinks that the interests of justice will be satisfied by so doing order such plea of guilt to be recorded and may pass judgment thereon accordingly, and thereupon the accused shall be discharged of the offence laid in the indictment and such discharge shall amount to an acquittal.

Special jury may be summoned.

208.

(1) The prosecuting counsel or the accused may apply to the High Court at the sessions where the trial is pending for an order requiring a special jury to be summoned to try any case; and the Judge before whom such application comes up, shall if he considers Such application just and reasonable make an order accordingly.

(2) Such application except when made by the Attorney-General, Solicitor-General, or State Counsel, shall be supported by affidavit.

Choosing a Jury
Number of persons jury and quorum for verdict.

209.

(1) The jury shall consist of seven persons.

(2) The verdict returned shall be unanimous or by a majority of not less than five to two.

Empanelling of jury.

210.

(1) The jury shall be taken from the panel elected by the accused unless the court otherwise directs.

(2) The jury shall be chosen by lot from the panel.

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

(4) Objections without grounds stated shall be allowed to the number of two on behalf of the person or ail the persons charged.

(5) On the suggestion of the prosecuting counsel without grounds of objection stated any number of jurors called may be ordered by the Judge to stand by until the names of all the jurors summoned and then available for service on the jury have been gone through.

(6) If such names have been gone through without a jury having been made up the names of each of those so ordered to stand by shall be called again and the prosecuting counsel shall be called upon to state the ground of objection (if any) under section 211.

(7) If there shall not be a sufficient number of jurors present unchallenged the trial shall be adjourned to enable a new panel of jurors to be summoned.

Grounds of objection.

211. Any objection taken to a Juror on any of the following grounds if made out to the satisfaction of the court shall be allowed: –

(a) some presumed or actual partiality in the jury;

(b) some personal ground . such as deficiency in the qualification required by any law or rule having the force of law for the time being in force;

(c) his executing any duties of police or being entrusted with police duties ;

(d) his having been convicted of any offence which in the opinion of the Judge renders him unfit to serve on the jury;

(e) his inability to understand the language of the panel from which the jury is drawn;

(f) any other circumstance which in the opinion of the Judge renders him improper as a juror.

Decision of objection.

212.

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

(2) If the objection is allowed the place of such juror shall be substituted by any other juror chosen in manner provided in this Chapter.

Foreman of jury.

213.

(1) When the jurors have been chosen the Registrar shall address them in the following words: ” Gentlemen of the jury, choose your foreman “, and they shall thereupon proceed to do so.

(2) 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 Judge.

(3) When the foreman has been appointed the jurors shall be sworn or affirmed.

Duties of foreman.

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

Procedure where juror ceases to attend,& c.

215. 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 m which it is interpreted, the Judge may either order a new juror to be added or discharge the jury and order a new jury to be chosen.

Discharge of jury .In case or sickness of prisoner.

216. The Judge may also discharge the jury whenever the prisoner becomes incapable of remaining at the bar and whenever in the opinion of the Judge the interests of justice so require.

Trial to Close of Case for Prosecution and Defence
Registrar to read indictment to jury.

217. As soon as the jury have been sworn the Registrar shall in the hearing of the accused read the indictment to the jury and the Judge shall inform them that it is their duty to listen to the evidence and upon that evidence to find by their verdict whether or not the accused is guilty of the charge, or any of the charges if more than one, laid against him, in the indictment and may also direct them briefly on the presumption of innocence, the burden of proof and such other principles of law as may be relevant to the case.

Opening of case for prosecution.

218. The prosecuting counsel shall then open his case by stating shortly the nature of the offence charged and the evidence by which he proposes to prove the guilt of the accused and shall examine his witnesses who may then be cross-examined by the accused or his pleader.

Statements by prisoner to be put in.

219. All statements of the accused recorded in the course of the inquiry if any in the Magistrate’s Court shall be put in and read in evidence before the close of the case for the prosecution.

Procedure after examination of witnesses for the prosecution.

220.

(1) When the case for the prosecution Is closed, if the Judge considers that there is no evidence that the accused committed the offence he shall direct the jury to return a verdict of “not guilty “.

(2) If the Judge considers that there is evidence that the accused committed the offence he shall ask him or his pleader if he means to adduce evidence.

(3) If the accused or his pleader announces his intention not to adduce evidence ‘the prosecuting counsel may address the jury a second time in support of his case for the purpose of summing up the evidence against the accused.

Defence.

221.

(1) 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. He may then call his witnesses and after they have given evidence may sum up his case.

(2) The prosecuting counsel will be entitled to cross-examine all the witnesses called by the defence to testify on oath or affirmation.

Right of accused as examination and summoning of witnesses.

222. The accused shall be allowed to examine any witness not previously named by him if such witness is in attendance.

Witnesses In rebuttal.

223. The prosecuting counsel may by leave of the Judge call witnesses in rebuttal.

View by jury of place where offence committed.

224.

(1) Whenever the Judge thinks that the jury 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 Judge shall make an order to that effect; and the jury 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 Judge.

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

When juror may be examined.

225. If a juror is personally acquainted with any relevant fact it is his duty to inform the court that such is the case whereupon he may be sworn and examined in the same manner as any other witness.

Jury to attend on adjourned sitting.

226. If a trial is adjourned the jury shall attend at the adjourned sitting and every subsequent sitting until the conclusion of the trial.

When jury may be kept together.

227.

(1) It shall not be necessary in any case to keep the jury together during any adjournment previous to the close of the Judge’s summing up, but it shall be lawful for the Judge if it should appear to him to be advisable in the interests of justice in any trial to require the jury to be kept together during any adjournment.

(2) Where the jury is allowed to separate during the course of any trial the jurors may be first sworn or affirmed not to hold communication with any person other than a fellow juror upon the subject of the trial during such separation.

(3) If any such juror shall hold any such communication with any person other than a fellow juror or if any person other than a fellow juror shall hold any such communication with any such juror, such juror or person as the case may be shall be deemed to be guilty of a contempt of court and shall be punishable accordingly.

Judge may allow jurors refreshment.

228. The Judge may if he thinks fit order reasonable refreshment to be procured for the jury by the Registrar at the public expense at any time during which they may be kept together either before or after the Judge has summed up.

Conclusion of Trial
Charge to jury.

229. When the case for the defence and the prosecuting counsel’s reply (if any) are concluded the Judge shall charge the jury summing up the evidence and laying down the law by which the jury are to be guided.

Duly of Judge.

230. It is the duty of the Judge –

(a) to decide all questions of law arising in the course of the trial and especially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties;

(b) to decide upon the meaning and construction of all documents given in evidence at the trial;

(c) to decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given ;

(d) to decide whether any question which arises is for himself or for the jury.

Judge may comment on question or fact or upon question of mixed law and fact.

231. 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

(a) It is proposed to prove a statement made by a person not being a witness in the case on the ground that circumstances are proved which render evidence of such statement admissible.

It is for the Judge and not for the jury to decide whether the existence of those circumstances has been proved.

(b) It is proposed to give secondary evidence of a document the original of which is alleged to have been lost or destroyed.

It is the duty of the Judge to decide whether the original has been lost or destroyed.

Duty of jury-

232. It is the duty of the jury.

(a) to decide which view of the facts is true and then to return the verdict which under such view ought according to the direction of the Judge to be returned ;

(b) to determine the meaning of alt technical terms (other than terms of law) and words used in an unusual sense which it may be necessary to determine whether such words occur in documents or not;

(c) to decide all questions which according to law are to be deemed questions of fact;

(d) to decide whether general indefinite expressions do or do not apply to particular cases, unless such expressions refer to legal procedure or unless their meaning is ascertained by law, in either of which cases it is the duty of the Judge to decide their meaning.

Illustrations

(a)A is tried for the murder of B.

It is the duly of the Judge 10 explain to the jury the distinction between murder and culpable homicide not amounting 10 murder and 10 tell item under what view of the fact-. A ought to be convicted of murder or of culpable homicide not amounting to murder or to be acquitted.

It is the duly of the jury to decide which Act of the facts is true and to return a verdict in accordance with the direction of the Judge, whether that direction Is right or wrong and ‘whether they do or do not agree with it.

(h) The question is whether a person entertained a reasonable belief on j particular point whether work was done with reasonable skill or due diligence.

Each of these is a question for the jury.

Jury may retire to consider verdict.

233.

(1) After the summing up the jury may retire to consider their verdict.

(2) If the jury retire they shall be committed to the charge of an officer of the court who shall first take an oath or affirmation in the prescribed form.

(3) Except with the leave of the Judge any person other than a member of the jury shall not speak to or hold any communication with any member of such jury.

When jury ready to give verdict.

234.

(1) When the jury are ready to give their verdict and are all present the Registrar shall ask the foreman if they are unanimous.

(2) If the jury are not unanimous the Judge may require them to retire for further consideration.

(3) After such further consideration as the Judge considers reasonable or if either in the first instance the foreman says that they are unanimous or the Judge has not required them to retire, the Registrar shall say (the jurors being all present): ” Do you find the accused person (naming him) guilty or not guilty of the offence (naming it) with which he is charged ? “.

(4) On this the foreman shall take what is the verdict of the jury.

Verdict to be given on each.

235.

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

(2) If the Judge does not approve of the verdict returned by the Jury he may direct them to reconsider their verdict, and the verdict given after such reconsideration shall be deemed to be the true verdict.

Entry and signing of verdict.

236.

(1) The Registrar shall make an entry of the verdict on the indictment and verdict. shall then say to the jury the following or words to the like effect:

” Gentlemen of the jury: attend whilst your foreman signs your verdict. The finding of you (or of so many of you as the case may be) is that the prisoner A.B. is guilty” (or ” not guilty “).

(2) The foreman shall sign the verdict so entered and the verdict when so entered and signed, but not before, shall be final.

(3) When by accident or mistake a wrong verdict is delivered the jury may before it is signed or immediately thereafter amend the verdict.

Discharge of jury when they cannot agree.

237. If the jury or the required majority of them cannot agree the Judge shall after lapse of such time as he thinks reasonable agree. discharge them.

Judgment in case of conviction.

238. If the accused is convicted the Judge shall forthwith pass judgment on him according to law :

Provided always that if it appears to the Judge expedient the Judge instead of pronouncing Judgment may direct that the accused be released on his entering into a bond, with or without sureties and during such period as the Judge may direct, to appear and receive judgment if and when called upon and in the meantime to keep the peace and be of good behaviour.

D – RE-TRIAL OF ACCUSED AFTER DISCHARGE OF JURY
Re-trial of accused.

239.

(1) Whenever the jury is discharged the accused shall subject to the provisions of section 403 be detained in custody or released on bail, as the Judge may think fit, and tried by another jury.

(2) Every person detained in custody under this section shall be so detained by warrant addressed to the superintendent of any prison and the provisions of section 264 shall apply to every such warrant.

E – PROCEDURE IN CASE OF PREVIOUS CONVICTION
Procedure in case of previous conviction.

240.

(1) In the case of a trial where the accused is charged with an offence committed after a previous conviction for any offence the procedure hereinbefore laid down shall be modified as follows: –

(a) if the accused pleads guilty to or is convicted of the offence with which he is charged he shall then be asked whether he admits the previous conviction;

(b) if he admits the previous conviction the Judge may proceed to pass judgment on him accordingly; but if he denies that he has been so previously convicted or refuses to or does not answer such question the jury or Judge as the case may be shall then inquire concerning such previous conviction and in such case it shall not be necessary to swear the jurors again.

(2) Notwithstanding anything in’ this section contained 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 any law for the time being in force in Sri Lanka.

F – TRIALS IN THE HIGH COURT IN THE ABSENCE OF THE ACCUSED
Trial may be held in the absence of accused.

241.

(1) Anything to the contrary in this Code notwithstanding the trial of any person on indictment with or without a jury may commence and proceed or continue in his absence if the court is satisfied –

(a) that the indictment has been served on such person and that –

(i) he is absconding or has left the Island; or

(ii) he is unable to attend or remain in court by reason of illness and has consented to the commencement or continuance of the trial in his absence; or

(iii) he is unable to attend or remain in court by reason of illness and in the opinion of the Judge prejudice will not be caused to him by the commencement or continuance of the trial in his absence; or

(iv) by reason of his conduct in court, he is obstructing or impeding the progress of the trial; or

(b) that such person is absconding or has left the Island and it has not been possible to serve indictment on him.

(2) The commencement or continuance of a trial under this section, shall not be deemed or construed to affect or prejudice the right of such person to be defended by an attorney-at-law at such trial.

(3) Where in the course of or after the conclusion of the trial of an accused person under sub-paragraph (i) of paragraph (a) of subsection (1) or under paragraph (A) of that subsection he appears before court and satisfies the court that his absence from the whole or part of the trial was bona fide then –

(a) where the trial has not been concluded, the evidence led against the accused up to the time of his appearance before court shall be read to him and an opportunity afforded to him to cross-examine the witnesses who gave such evidence; and

(b) where the trial has been concluded, the court shall set aside the conviction and sentence, if any, and order that the accused be tried de novo.

(4) The provisions of subsection (3) shall not apply if the accused person had been defended by an attorney-at-law at the trial during his absence.

Procedure where trial is held in the absence of the accused.

242. Trials in the High Court in the absence of the accused shall proceed as nearly as may be according to the provisions of this Chapter relating to trials with a jury or without a jury as the case may be.

CHAPTER XIX
OF EXPENSES OF WITNESSES AND OF JURORS
Power to make regulations.

243.

(1) The Minister may with the concurrence of the Minister in charge of the subject of Finance make regulations providing –

(a) for the payment out of the Consolidated Fund of the expenses of persons attending to give evidence for the prosecution or defence or called to give evidence at the instance of the court for the expense, trouble, or loss of time properly incurred in, or incidental to, the attendance and giving of evidence in any trial before the High Court or on the inquiry preliminary to any such trial and the conditions on which such payments may be allowed ;

(b) for the payment out of the Consolidated Fund of the expenses of persons summoned to serve as jurors in any trial before the High Court;

(c) for the persons by whom, and the manner in which, the amounts of such expenses shall be ascertained and payments made.

(2) Until regulations are made under subsection (1) the regulations relating to the matters set out in that subsection and in force on the appointed date shall continue to be applicable and in force,

CHAPTER XX
OF JURORS
Liability to serve as a juror.

244. Subject to the provisions contained in sections 245 and 246, every person residing within Sri Lanka who has attained the age of twenty-one years and has obtained a pass at the General Certificate of Education (Ordinary Level) Examination or at an equivalent examination in six subjects including Sinhala or Tamil Language, and is in receipt of an income of not less than three hundred rupees per month shall be qualified and liable to serve as a juror, and every such person who is also a graduate of a recognized university or holds an equivalent professional qualification shall, in addition, be qualified and liable to serve as a special juror.

Persons who shall not serve as jurors.

245. The following persons shall not serve as jurors: –

(a) the President of the Republic of Sri Lanka;

(b) Judges of Courts established under the law in force;

(c) Members of Parliament;

(d) representatives of Foreign Governments;

(e) officers and other employees of Parliament and of Courts and. of the Ministry charged with the subject of Justice;

(f) inquirers appointed under this Code;

(g) attorneys-at-law;

(h) police and customs officers;

(i) priests;

(j) persons employed in the departments of the Attorney-General, Commissioner of Prisons and Commissioner of Probation and Child Care Services;

(k) persons who have suffered imprisonment for a term of one month or more;

(l) persons who labour under such bodily or mental incapacity or profess such religious tenets as render them unfit to discharge the duty of a juror.

Persons who shall not serve as jurors except with their own consent.

246. The following persons shall not serve as jurors except with their own consent: –

(a) persons serving in the Sri Lanka Army, Navy or Air Force on full pay or active employment;

(b) persons registered under the law for the time being in force as medical practitioners;

(c) persons duly qualified as dispensers of drugs and actually employed as such;

(d) Registrars and Deputy Registrars of Births and Deaths;

(e) persons over the age of sixty years.

Exemption and excuse from service on jury.

247.

(1) Any person who has been summoned to serve on a jury shall be entitled to be exempted from service if he has served as a juror within twelve months from the date for which he is summoned ;

Provided –

(a) that the claim for exemption is made by letter addressed to the Registrar immediately after such person has been summoned to attend ; and

(b) the court is of opinion that the exemption can be allowed without unduly reducing the panel.

(2) Any person whose name is included in any list may apply in writing to the Registrar asking to be excused, from attendance as a juror for a particular period and stating the grounds on which the application is made, and the Judge may make such order thereon as he may think fit.

(3) The Judge may for reasonable cause excuse any Juror from attendance on any particular day or days or time of the day and either unconditionally or on condition of his serving on some other day or time to be fixed by the Judge.

Preparation of lists of persons serve as jurors.

248.

(1) Every Government Agent shall, with respect to each Judicial zone within his jurisdiction, prepare and maintain lists of the persons, who are qualified and liable to act as jurors or special jurors as the case may be, setting forth the names in full, occupation and places of residence of such jurors and special jurors. Any person refusing or neglecting to give any information when called upon to do so by the Government Agent for the. purpose of preparing or maintaining such lists, or wilfully giving false information, shall be guilty of an offence and shall be liable on conviction by a Magistrate to a fine not exceeding one hundred rupees.

(2) It shall be competent for the Minister to direct the consolidation of the lists of two or more judicial zones,

(3) The Government Agent shall,-in the month of July in every year, forward the list to the Registrar of the High Court.

Panels of Jurors to be prepared from each list.

249.

(1) Panels of jurors shall at least two weeks before the commencement of sessions and thereafter, from time to time, be prepared by each High Court Judge nominated to preside at the sessions at which such jurors are expected to attend in accordance with such procedure as shall be prescribed by rules. Until rules are prescribed under this section, the rules relating to the procedure in force on the day immediately preceding the appointed date shall continue to be in force.

(2) Unless it be unavoidable not more than one person belonging to or employed in any Government Department, any Corporation or any mercantile or business establishment or on any plantation or estate shall be included in the same panel.

Summons on Jurors.

250.

(1) Every summons to a juror shall be served on such person at least ten days before the day on which his attendance is required, and may be served by the Fiscal or by registered post or in such other manner as the Judge may direct.

(2) The summons may state that such juror need not attend on a particular day, but that he must hold himself in readiness to attend on any day of which he may receive special notice.

Juror not bound to serve more than a fortnight.

251. A juror shall not be compellable to serve more than a fortnight unless at the expiration of the fortnight a trial in which he is engaged as a juror is pending and then only until the end of such trial.

Juror absenting himself without leave liable to fine.

252.

(1) Any person summoned to attend as a juror who without lawful excuse fails to attend, or who having attended departs without having obtained the permission of the court or fails to attend after an adjournment of the court after being ordered to attend, shall be liable by order of the Judge to such fine as he thinks fit and in default of payment of such fine to imprisonment until the fine is paid :

Provided that it shall be lawful for the Judge if he thinks fit to remit any fine so imposed.

(2) When any person is so fined in his absence the Registrar shall forthwith send him a written notice requiring him to pay the fine or to show cause before the court within seven days for not paying the same.

No proceeding to be invalid by reason of defect or error injury list or panel.

253. Any judgment, sentence, order, verdict, or other proceeding by, of, at, or before the High Court and anything done in pursuance of the same shall not be held invalid or illegal or be in any way called in question by reason of any defect or error in or about the qualification of any juror.

Special jury panel.

254. Whenever an order shall be made requiring a special jury to be summoned a panel shall be prepared of such number as the order shall specify from the list of special jurors, and thereupon the Registrar shall summon the persons on such panel and the provisions of this Chapter shall mutatis mutandis so far as the same may be applicable apply to the preparation of such panel and to the summoning and service of the special jury.

CHAPTER XXI
GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS
Power to compel attendance of witnesses.

255.

(1) If for the purpose of any inquiry or trial in a Magistrate’s Court the prosecutor or the accused applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or other thing the Magistrate shall issue such process unless for reasons to be recorded by him he deems it unnecessary so to do.

(2) If the Magistrate suspects that process to compel the attendance of any witness is applied for the purpose of vexation or delay or of defeating the ends of justice he may require the applicant to satisfy him that there are reasonable grounds for believing that 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 he thinks necessary to defray the expense of obtaining the attendance of the witness.

Tender of pardon to accomplice.

256.

(1) In the case of any offence triable exclusively by the High Court the Magistrate inquiring into the offence may, after having obtained the Attorney-General’s authority so to do, or the Attorney-General himself may, with the view of obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence under inquiry, 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 such offence and to every other person concerned whether as principal or abettor in the commission thereof.

(2) Every person accepting a tender under this section shall be examined as a witness in the case.

(3) Such person if not on bail shall be detained in custody until the termination of the trial.

Power of Attorney-General to direct tender of pardon by Magistrate.

257. The Attorney-General at any stage after commitment but before judgment is pronounced 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 authorize the Magistrate to tender a pardon on the same condition .to such person.

Not complying with condition on which pardon has been tendered.

258. Where a pardon has been tendered under either of the last two preceding sections and any person who has accepted such tender has either by wilfully concealing anything essential or by giving false evidence not complied with the condition on which the tender was made, he 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.

Statement of person pardoned may be given in evidence against him at his trial.

259.

(1) The statement made by a person who has accepted a tender of pardon may be given in evidence against him when he is tried as stated in section 258.

(2) A prosecution for the offence of giving false evidence in respect of such statement shall not be entertained without the sanction of the Attorney-General.

Right of accused to be defended.

260. Subject to the provisions of this Code and any written law every person accused before any criminal court may of right be defended by an attorney-at-law, and every aggrieved party shall have the right to be represented in court by an attorney-at-law.

Appearance for a corporation in court.

261.

(1) At any trial in any court in which a corporation is the accused, the corporation may be represented by the managing director, the secretary, or a like officer of the corporation or by a person appointed in writing as the representative of the corporation by the managing director.

(2) Where a corporation is represented by any person appointed in accordance with the provisions of subsection (1) –

(a) such person may answer to the charge against the accused and may, where the consent of the accused is required for any purpose, give or refuse such consent, and may exercise on behalf of the accused all or any of the rights of the accused, and

(b) any requirement of this Code that anything shall be done in the presence of; or shall be read or said to, the accused shall be construed as a requirement that such thing shall be done in the presence Of, or read or said to, such person.

(3) Where a corporation is not represented by any person appointed in accordance with the provisions of subsection (1), the court shall, if the court is satisfied that summons has been served on the corporation, have the power to proceed with and conclude the trial notwithstanding the fact that the corporation is not represented at the trial.

Procedure where accused who is not in same does not understand proceedings.

262. If the accused though not insane cannot be made to understand the proceedings the Magistrate’s Court or the High Court as the case may be, may proceed with the inquiry or trial, and if such inquiry results in a commitment or if such trial results in a conviction the proceedings shall be forwarded to the Court of Appeal with a report of the circumstances of the case and the Court of Appeal shall pass thereon such order as it thinks fit.

Power to postpone or adjourn proceedings.

263.

(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 from time to time order a postponement or adjournment on such terms as it thinks fit for such time as it considers reasonable and may remand the accused if in custody or may commit him to custody or take bail in his own recognizance or with sureties for his appearance,

(2) Where the accused has attended the court on summons he shall be enlarged on his own recognizance or on his simple undertaking to appear, unless for reasons to be recorded court orders otherwise.

Explanation. –

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


(3) An inquiry or trial in a Magistrate’s Court shall not be postponed or adjourned on the ground of the absence of a witness unless the Magistrate has first satisfied himself that the evidence of such witness is material to the inquiry or trial and that reasonable efforts have been made to secure his attendance, and has recorded the name of such witness and the nature of the evidence which he is expected to give.


(4) Every person remanded or committed to custody under this section shall be so remanded or committed by warrant addressed to the superintendent of a prison and the provisions of section 264 shall apply to every such warrant.

Procedure on issue of warrants of commitment,& c.

264.

(1) Every warrant of detention, commitment or remand issued under section 115, section 159, section 239 or section 263 shall be in the prescribed form and shall be signed by the Judge and such warrant shall be delivered to an officer of the Prisons Department. Such officer shall upon receipt thereof take charge of the person named therein and deliver him into the custody of the superintendent of the prison named therein, and the said warrant shall be full authority to the said officer of the Prisons Department for so doing and for detaining the said person for the purpose.

(2) The said superintendent shall, upon delivery to him as aforesaid of the person named in the warrant, detain him and keep him safely in custody on behalf of the court making the detention, commitment or remand for such time as may be specified by the warrant, and shall otherwise comply with the terms of the warrant and also with any order lawfully issued to him by any court with respect to such person.

Warrant shall be full authority to superintendent of prison.

265.

(1) The warrant referred to in section 264 shall be full authority to the superintendent of the prison for the detention and custody of such person.

(2) A copy of the warrant under the hand of the Judge shall be filed of record in the case.

Compounding offences.

266.

(1) The offences described in the first and second columns of the table following may, when a prosecution for such offence is not pending in the Magistrate’s Court, be compounded by the person mentioned in the corresponding entries in the third column of that table and when a prosecution is pending in a Magistrate’s Court be compounded by that person with the consent of the Magistrate of that court.

(2) 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.

(3) When the person who would otherwise be competent to compound an offence under this section is a minor, an idiot, or a person of unsound mind, any person competent to contract on his behalf may compound such offence.

(4) The compounding of an offence under this section shall have the effect of an acquittal of the accused.

(5) Any offence not described in this section shall not be compounded

Change of Magistrate during hearing or inquiry.

267. Whenever any Magistrate after -having heard and recorded the whole or any part of the evidence in an inquiry or a trial 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 and partly recorded by himself or he may re-summon the witnesses and re-commence the inquiry or trial:

Provided that in any trial the accused may when the second Magistrate commences his proceedings demand that the witnesses or any of them be re-summoned and re-heard.

Supreme Court or Court of Appeal may set aside conviction where material prejudice is caused.

268. The Supreme Court or the Court of Appeal may, whether there be an appeal or not, set aside any conviction had on evidence not wholly recorded by the Magistrate before whom the conviction was had, if such court is of opinion that the accused has been materially prejudiced thereby, and may order a new trial.

Detention of offenders attending.

269.

(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 for any offence of which such court can take cognizance and which from the evidence he may appear to have 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 Chapter XV or after a trial has been begun the proceedings in respect of such person shall be commenced afresh and the witnesses re-heard.

Proceedings may be had a public holiday.

270. Any proceeding of any criminal court and any inquiry shall not be invalid by on public reason only of its being held on a public holidays.

Case for prosecution to be explained by court to accused, if he is not represented by a pleader.

271.

(1) At every trial if and when the court calls upon the accused for his defence it shall, if he is not represented by a pleader, inform him of his right to give evidence on his own behalf and if he elects to give evidence on his own behalf shall call his attention to the principal points in the evidence for the prosecution which tell against him in order that he may have an opportunity of explaining them.

(2) At every trial whether evidence is called by the accused or not, the accused shall have the right of reply.

(3) The failure at any trial of any accused, or the husband or wife as the case may be of any accused, to give evidence shall riot be made the subject of adverse criticism by the prosecution.

CHAPTER XXII
OF THE MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
Evidence to be taken in presence of accused.

272. Except as otherwise expressly provided all evidence taken at inquiries or trials under this Code shall be” taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader.

How evidence to be taken down.

273.

(1) In the High Court and Magistrates’ Courts, the evidence of each witness shall be taken down in writing by the Judge or in his presence and hearing and under his personal direction and superintendence and shall be signed and dated by the Judge and where the evidence is taken at an inquiry shall also be signed by the interpreter if any who shall have been employed.

(2) The evidence shall not ordinarily be taken down in the form of question and answer but in the form of a narrative, but the Judge may in his discretion take down any particular question and answer:

Provided however that in the High Court the evidence shall be taken down in question and answer.

(3) For the identification of witnesses the following particulars shall be recorded as to each, namely –

(a) full name,

(b) if a married woman, the name of the husband,

(c) age,

(d) occupation,

(e) place of residence,

(f) if a foreigner his nationality.

(4) Every Judge recording the evidence of a witness may record such remarks as he thinks material respecting the demeanour of such witness whilst under examination.

Procedure in regard to such evidence when completed.

274.

(1) As the evidence of each witness taken at an inquiry is completed or at some time before commitment it shall be read over to the witness by the Magistrate in the presence of the accused person if in attendance or of his pleader if he appears by pleader, and shall if necessary be corrected.

(2) If the witness denies the correctness of any part of the evidence when read over to him the Magistrate may instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

(3) If the witness does not understand the language in which the evidence has been recorded such evidence shall be interpreted to him in the language in which it was given.

(4) When the evidence has been read over to the witness and every correction, if any asked for by him, has been made or noted the witness shall subscribe the deposition with his signature, and in the event of his refusing to do so the Magistrate shall record such refusal.

Certifications depositions by Magistrates.

(5) When a deposition has been read over to a witness and acknowledged to be of correct, the Magistrate shall append to the evidence of the witness a certificate, signed with his signature or initials to the following effect, that is to say –

(a) in the case of a witness who gave evidence in the language in which the record is kept: ” Read over to the witness in open court in the presence of the accused and admitted by the witness to be correct “; and

(b) in the case of other witnesses: ” Read over and interpreted to the witness in open court in the presence of the accused and admitted by the witness to be correct”.

(6) In the case of depositions recorded in the absence of the accused the words ‘* in the presence of the accused ” shall be deleted from the certificate referred to in subsection (5).

(7) The absence of such a certificate in a deposition shall not be a bar to the deposition being received in evidence in any case in which it is desired to tender the deposition in evidence if it is proved by other evidence that the other requirements of the section were in fact complied with.

Interpretation of evidence to accused.

275.

(1) Whenever any evidence is given in a language not understood by the accused and he is present in person and not represented by an attorney-at-law it shall be interpreted to him in open court in a language understood by him.

(2) When documents are put in for the purpose of formal proof it shall be in the discretion of the court to cause only so much thereof as appears necessary to be interpreted.

Documentary evidence.

276.

(1) On every inquiry and trial in a Magistrate’s Court all documentary evidence shall be filed in the record and initialled by the Magistrate and dated with the date of its receipt by him,

(2) Where any document is not in the language of the court there shall be filed with it a translation of such document or of so much thereof as is material, in the language of the court.

(3) It shall be lawful for a Judge to require any document to be translated into a language with which he is familiar.

(4) When any documentary evidence is of such a nature, that .it is impracticable or inconvenient to file the same in the record the Magistrate may after initialing it for the purpose of identification return the same to the person producing it, who shall be legally bound to produce it again before the court of trial, but the Magistrate shall in that case cause a copy to be made of such part or portion of the document as is relevant and filed with the record.

How statement or examination of accused shall be recorded.

277.

(1) Whenever in the course of an inquiry under Chapter XV, an accused makes a statement to a Magistrate the whole of such statement shall be recorded in full and such record shall be shown or read to him or if he does not understand the language in which it is written shall be interpreted to him in a language he understands and he shall be at liberty to explain or add to his statement.

(2) When the whole is made conformable to what, he declares is the truth the record shall be signed by the Magistrate, who shall certify under his own hand that it was taken in his presence and in his hearing and contains accurately the whole of the statement of the accused.

(3) The accused shall sign or attest by his mark such statement, and in the event of his refusing to do so the Magistrate shall record such refusal.

Presiding Judge to take or cause to be taken notes of evidence.

278. In cases tried before the High Court the presiding Judge shall take or cause to be taken in writing notes of the evidence.

CHAPTER XXIII
OF THE JUDGMENT
Mode of delivering Judgment.

279.* The Judgment in every trial under this Code shall be pronounced in open court immediately liter the verdict is recorded or save as provided in section 203 at some subsequent time of which due notice shall be given to the parties or their pleaders, and the accused shall if in custody be brought up or if not in custody shall be required to attend to hear Judgment delivered except when his personal attendance during the trial has been dispensed with and the sentence is one of fine only or when he has been absent at the trial.*(Sections 279 and 283 shall apply to every judgment of a Primary Court – See section 33 (2) of the Primary Courts’ Procedure Act.)

Allocutus.

280. In the High Court before judgment of death is pronounced the accused shall be asked whether he has anything to say why judgment of death should not be pronounced against him.

Punishment of detention in lieu of death for the persons under eighteen years of age.


[11,52 of 1980. ]

281. Where any person convicted of an offence punishable with death, appears to the court to be under the age of eighteen years, the court shall pronounce on that person in lieu of the sentence of death the sentence provided by section 53 of the Penal code.

Procedure where a woman convicted of a capital offence alleges pregnancy.

282.

(1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom a woman is so convicted thinks it expedient that the question whether or not the woman is pregnant should be determined, such question shall, before sentence is passed on her, be determined –

(a) if the woman is convicted after trial at Bar by three Judges of the High Court without a jury, by those Judges; or

(b) if the woman is convicted after trial by jury, by the jury who returned the verdict of guilty, and the members of such jury need not be re-sworn.

(2) In cases falling under paragraph (b) of subsection (1) –

(a) if after the conviction of the woman and before the jury return a verdict on the question whether the woman is or is not pregnant, any juror is from any sufficient cause prevented from attending throughout the inquiry, 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, the court may either order a new juror to be added or discharge the jury and order a new jury to be chosen.

(b) if the jury are not able, either unanimously, or by a majority of not less than five to two, to agree upon the question to be determined or if in the opinion of the court the interests of justice so require, the court may discharge the jury and order a new jury to be chosen;

(c) where the court orders a new jury to be chosen under paragraph (a) or paragraph (b) of this subsection, such jury shall be constituted in like manner as the jury chosen for a trial and every such jury, and every new juror added under paragraph (a) of this subsection, shall be sworn in such manner as the court may direct.

(3) The question whether the woman is pregnant or not shall be determined by the Judges or by the jury, as the case may be, on such evidence as may be laid before them either on the part of the woman or on the part of the prosecution, and the Judges or the jury, as the case may be, shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

Punishment of imprisonment death for pregnant woman.

(4) If the finding is that the woman is pregnant, the court shall pronounce on her in lieu of the sentence of death a sentence of imprisonment as provided by section 54 of the Penal Code.

Judgments of courts other supreme court or Court of Appeal.

283.* The following provisions shall apply to the judgments of courts other than the Supreme Court or Court of Appeal: –

(1) The judgment shall be written by the. Judge who heard the case and shall be dated and signed by him in open court at the time of pronouncing it, and in case where appeal lies shall contain the point or points for determination, the decision thereon, and the reasons for the decision

(2) It shall specify the offence if any of which and the section of the law under which the accused is convicted and the punishment to which he is sentenced.

(3) If it be a Judgment of acquittal it shall state the offence of which the accused is acquitted.

(4) When a judgment has been so signed it cannot be altered or reviewed by the court which gives such judgment:

Provided that a clerical error may be rectified at any time and that any other error may be rectified at any time before the court rises for the day.

(5) The judgment shall be explained to the accused affected thereby and a copy thereof shall be given to him without delay if he applies for it.

(6) The original shall be filed with the record of proceedings.*(Sections 279 and 283 shall apply to every judgment of a Primary Court-See section 33 (2) of the Primary Courts’ Procedure Act.)

Judgment in alternative.

284. When the conviction is under the Penal Code and it is doubtful under which of two sections or under, which of two parts of the same section of that Code the offence falls the court shall distinctly express the same and pass judgment in the alternative.

Sentence of death and whipping.

285.

(1) When a person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead on a day and at a place, decided upon by the President.

(2) When a person is sentenced to whipping the judgment shall state whether he is above or under sixteen years of age and shall specify the number of lashes or strokes to be inflicted, such number in no case to exceed twenty-four.

CHAPTER XXIV
OF SENTENCES AND THE CARRYING OUT THEREOF
Provisions as to execution of sentences of death.

286. With regard to sentences of death the following provisions shall take effect; –

(a) after sentence has been pronounced a warrant shall be made out and signed by the Judge who passed the sentence or by his colleague or successor in office for the commitment of the person sentenced to the custody of the superintendent of a prison. Every such warrant shall be addressed to the superintendent of the prison in which the convict is to be kept pending execution of sentence and the provisions of section 290 shall apply to every such warrant;

(b) so soon as conveniently may be after sentence of death has been . pronounced the Judge of the High Court who presided at the trial or in case of his absence or inability his colleague or successor in office shall forward to the President the notes of evidence made by the Judge at the trial with a report in writing signed by him setting out his opinion whether there are any and what reasons why the sentence of death should or should not be carried out;

(c) the President after considering the said report shall inform the High Court of any order he may have made thereon;

(d) the President may order a respite of the execution of the warrant or appoint a date and time and place for its execution;

(e)

(i) there shall be present at the execution of the sentence, the superintendent or a jailer of the prison, the medical officer of the prison and such other officers of the prison as the superintendent or jailer as the case may be» requires and if the execution takes place within the walls of the prison there may also be present any minister of religion in attendance at the prison and such relations of the prisoner or other persons as the superintendent of the prison thinks proper to admit;

(ii) as soon as may be after judgment of death has been executed the medical officer of the prison shall examine the body of the person executed and shall ascertain the fact of death and shall sign a certificate thereof and deliver the same to the superintendent of the prison;

(iii) a Magistrate of the division in which the place of execution was situate shall within Twenty-four hours after the execution inquire into and satisfy himself of the identity of the body and whether judgment of death was duly executed thereon and he shall make a report in duplicate. One of the originals shall be forwarded to and filed in the High Court and the other shall be forwarded to and filed in the office of the Minister;

(f) When a sentence of death cannot be executed owing to the absence during the trial or escape of the person sentenced to death execution of such sentence shall be carried into effect at such other time after his capture or recapture as the case may be as the President shall order;

(g) any omission or error as to time and place and any defect in form in any order or warrant given under this section and any omission to comply with the provisions of paragraph (e) shall not be held to render illegal any execution carried into effect under such order or warrant or intended so to have been carried into effect, nor to render any execution illegal which would otherwise have been legal.

In this section and in section 288 the expression ” President” shall mean the President of the Republic of Sri Lanka.

Execution of sentences of High Court other than sentence of death.

287. With regard to sentences passed by the High Court other than sentence of death the following provisions shall take effect: –

(a) as soon as conveniently may be after the sentence has been pronounced the Registrar shall make out a warrant of commitment which shall be signed by the Judge who passed sentence or a colleague of his or his successor in office and dated of the day when sentence was passed ;

(b) every such warrant shall be in the prescribed form and shall be addressed to the superintendent of any prison and the provisions of section 290 shall apply to every such warrant.

Execution of sentences under section 53 of the Penal Code.

288. When any person has been sentenced under section 53 of the Penal Code to be detained during the President’s pleasure he shall, notwithstanding any enactment to the contrary, be liable to be detained in such place and under such conditions as the President may from time to time direct, and whilst so detained shall be deemed to be in legal custody.

Execution of sentence of courts other than the Supreme Court or Court of Appeal or High Court.

289.* With regard to sentences passed by courts other than the Supreme Court, Court of Appeal and High Court the following provisions shall take effect: –

(a) where the accused is sentenced to imprisonment the court passing the sentence shall forthwith make out a warrant signed by the Judge or his colleague or his successor in office and dated of the day when the sentence was passed;

(b) every such warrant shall be in the prescribed form and shall be addressed to the superintendent of any prison and the provisions of section 290 shall apply to every such warrant. *(Sections 289 and 290 shall apply to every sentence of imprisonment passed by a Primary Court. – See section 33 (2) of the Primary Courts’ Procedure Act.)

Procedure on issue of warrants under sections 286, 287 and 289.

290.*

(1) Every such warrant as is referred to in section 286, section 287, or section 289 shall be delivered in the prescribed form to an officer of the Prisons Department. Such officer shall upon receipt thereof take charge of the person named therein, and deliver him into the custody of the superintendent of the prison named therein, together with the warrant under the hand of the Judge, and the said warrant shall be full authority for detaining the said person for the purpose, and for carrying him to the prison specified in the warrant.

(2) The said superintendent shall, upon delivery to him as aforesaid of the person named in the warrant, detain him and keep him safely in custody until the sentence has been carried into execution, and shall otherwise comply with the terms of the warrant and with any order lawfully issued to him by any court with respect to such person.

(3) The warrant aforesaid shall be full authority to the superintendent for such detention and custody and for carrying the sentence into execution.

(4) A copy of the warrant under the hand of the Judge shall be filed of record in the case.

(5) Anything in this section shall not affect the provisions of this Code relating to the execution of sentences of whipping.*(Sections 289 and 290 shall apply to every sentence of imprisonment passed by a Primary Court. – See section 33 (2) of the Primary Courts’ Procedure Act.)

Provisions as to sentences of fines.

291.

(1) Where any fine is imposed under the authority of any law for the time being in force, then in the absence of any express provision relating to such fine in such law contained the provisions following shall apply, that is to say: –

(a) where a sum is not expressed to which the fine may extend the amount to which the offender is liable is unlimitted but shall not be excessive;

(b) in every case of an offence punishable with imprisonment as well as fine in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with fine only in which the offender is sentenced to a fine, the court passing the sentence may in its discretion direct by the sentence that in default of payment of the fine the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence;

(c) notwithstanding the provisions of paragraph (b), where the fine to which the offender is sentenced does not exceed ten rupees, the court shall not impose a term of imprisonment in default of payment of the fine, but may make order as provided in section 15 (2);

(d) the term for which the court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of -imprisonment which is the maximum fixed for the offence if the offence be punishable with imprisonment as well as fine ;

(e) the imprisonment which the court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence ; if the offence be punishable with fine only, the imprisonment shall be simple;

(f) if the offence is not punishable with imprisonment the terms for which the court directs the offender to be imprisoned in default of payment of fine shall not exceed the following scale, that is to say: –

(i) for a term of seven days where the ‘amount of the fine exceeds ten rupees but does not exceed twenty-five rupees;

(ii) for any term not exceeding,, fourteen days where the amount of the fine exceeds twenty-five rupees but does not exceed fifty rupees;

(iii) for any term not exceeding three -months where the amount of the fine exceeds fifty rupees but does not exceed one hundred rupees;

(iv) for any term not exceeding six months where the amount of the fine exceeds one hundred rupees;

(g) the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or by process of law levied;

(h) if before the expiration of the term of imprisonment fixed in default of payment such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate;

(i) the fine or any part thereof which remains unpaid may be levied at any time within six years after the passing of the sentence, and if under the sentence the offender be liable to imprisonment for a longer period than six years then at any time previous to the expiration of that period, and the death of the offender does not discharge from the liability any property which would after his death be legally liable for his debts.

(2) Whenever an offender is sentenced to pay a fine under the authority of any law for the time being in force the court passing the sentence may in its discretion issue a warrant for the levy of the amount by distress and sale of any movable property belonging to the offender although the sentence directs that in default of payment of the fine the offender shall be imprisoned. Such warrant shall be addressed to the Fiscal of the court and may be executed at any place in Sri Lanka but if it is required to be executed outside the jurisdiction of the court by which it was issued it shall be endorsed by a Magistrate having jurisdiction where it is to be so executed.

(3) The wearing apparel of an offender and his family and, to the value of two hundred and fifty rupees the tools and implements of his trade, including therein seed grain, shall not be taken under a warrant of distress.

(4) Where an offender has been sentenced to fine only and to imprisonment in default of the fine, the court may do all or any of the following things: –

(a) allow time for the payment of the said fine,

(b) direct payment to be made of the said fine by instalments,

(c) direct that the person liable to pay the said fine shall be at liberty to give to the satisfaction of the court a bond, with or without a surety or sureties, for the payment of the said fine or any instalment thereof, and such bond may be given and enforced in manner provided by this Code.

(5) When a fine is directed to be paid by instalments, and default, is made in the payment of any one instalments, the same proceedings may be taken as if default had been made in payment of alt the instalments then remaining unpaid.

Execution of sentence may be suspended on execution of bond by offender.

292. When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine and the on court issues a warrant under section 291 it may suspend the execution of the sentence of imprisonment and may release the offender on his executing a bond with or without sureties as the court thinks fit conditioned for his appearance before such court on the day appointed for the return to such warrant, such day not being more than fifteen days from the time of executing the bond ; and on that day in the event of the fine not having been paid or realized the court may direct the sentence of imprisonment to be forthwith carried into execution:

Provided that where the fine is imposed by the High Court the bond may be conditioned for the appearance of the offender before a Magistrate’s Court therein named and such Magistrate’s Court shall on the day of appearance, if the fine shall not have been paid or realized, direct the sentence of imprisonment to be forth with carried into execution.

Who may Issue warrant.

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

When and where sentence of whipping to be executed.

294.

(1) When the accused is sentenced to whipping the sentence shall, subject to the other provisions of this Chapter, be executed at such time and place as the court may direct.

(2) Such whipping .shall in the case of persons above sixteen years of age be inflicted in the presence of a medical officer with a cane or rattan or other implement of such description and in such manner as the court may direct, and in the case of persons under sixteen years of age shall be inflicted with a light cane.

Whipping not lobe inflicted until after fourteen days.

295.

(1) When the accused is sentenced to whipping, the sentence shall not be carried out until after the expiration of fourteen days from the date of the pronouncement thereof, or (if an appeal is presented within that time) until the order of the Court of Appeal or Supreme Court shall have been notified to the accused, and the execution of the sentence shall be subject to the terms of such order.

(2) Subject to the provisions of subsection (1) of this section and to the provisions of section 294 (1), the whipping shall be inflicted as soon as practicable after the order.

(3) This section shall not apply to sentences of whipping passed on male offenders under sixteen years of age.

Whipping not lobe inflicted unless medical officer certifies that offender is in a fit state of health.

296.

(1) The punishment of whipping shall not be inflicted unless the medical officer certifies that the offender is in a fit state of health to undergo the punishment.

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

When sentence of whipping cannot be carried out offender maybe discharged.

297.

(1) In any case in which under section 296 a sentence of whipping is wholly or partially prevented from being carried into execution the offender shall be kept in custody till the court which passed the sentence can review it; and the said court may at its discretion either order the discharge of such offender or sentence him in lieu of whipping or in lieu of so much of the sentence of whipping as was not carried out to imprisonment for any term not exceeding that which the court is competent to inflict which may be in addition to any other punishment to which he may have been sentenced for the same offence.

(2) Anything in this section shall not be deemed to authorize any court to inflict imprisonment for a term exceeding that to which the accused is liable by law or that which the said court is competent to inflict.

whipping of juvenile offenders under sixteen years of age.

298. Whenever a male offender under sixteen years of age is sentenced by any court to whipping, such whipping shall not exceed six strokes with a light cane and shall be inflicted forthwith in the presence of the court, and if the parent of the offender desires to be present, in his presence.

A medical officer need not be present, but such whipping shall not be inflicted unless it appears to the court that the offender is in a fit state of health to undergo the same.

Sentences on escaped convicts.

299.

(1) Any convict shall not by reason of his escape from prison avoid any unexpired term of imprisonment simple or rigorous or any other punishment to which he was liable under any sentence or sentences passed on him prior to his escape.

(2) When a sentence is passed on an accused who was absent at his trial such sentence shall be put into execution immediately upon his arrest.

(3) When a sentence of death or of fine or whipping with or without imprisonment is passed on an escaped convict, such sentence, if of death, fine, or whipping, shall subject to the provisions hereinbefore contained take effect immediately; and if the imprisonment under the new sentence is rigorous and such convict was undergoing only simple imprisonment when he escaped, the rigorous imprisonment shall take effect immediately and shall be enforced concurrently with the former sentence, but if such convict was undergoing rigorous imprisonment when he escaped, the rigorous imprisonment under the new sentence shall take effect after such convict has suffered rigorous imprisonment for a further period commencing from the date of his recapture equal to that which at the time of his escape remained unexpired of his former sentence.

Sentence on offender already sentenced for another offence.

300. When a person actually undergoing imprisonment is sentenced to imprisonment such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced.

Certain sections of Penal Code to apply to all offences.

301. The provisions of sections 55 and 67 of the Penal Code shall apply to all offences whatever.

Return of warrant on execution of sentence.

302. When a sentence has been fully executed the officer executing it shall 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.

Suspended sentence of imprisonment

303.

(1) A court which imposes a sentence of imprisonment on an offender for a term not exceeding two years for an offence may order that the sentence shall not take effect unless, during a period specified in the order being not less than five years from the date of the order (hereinafter referred to as the ” operational period “), such offender commits another offence punishable with imprisonment (hereinafter referred to as ” subsequent offence “).

(2) A court which imposes a sentence of imprisonment for a term not exceeding six months in respect of one offence on an offender who has had no previous experience of imprisonment shall make an order under subsection (1) unless –

(a) the offence involved the use or threat of violence, or the use or possession of a firearm, an explosive or an offensive weapon;

(b) the offence is one in respect of which a probation order or order for conditional discharge was originally made;

(c) the offender was subject to a suspended sentence at the time the offence was committed : or

(d) the court is of opinion that, for reasons to be stated in writing, it would be inappropriate in the circumstances of the case, to deal with the offender in terms of this subsection.

(3) A court which imposes a suspended sentence on any person in respect of one offence shall not impose a sentence of. imprisonment in respect of a different offence, in the same proceeding.

(4) On imposing a suspended sentence the court shall explain to the offender in ordinary language his liability under section 304 if during the operational period he commits a subsequent offence.

(5) If the offender does not commit a subsequent offence during the operational period, the conviction and the suspended sentence imposed on the offender shall be deemed for all purposes, never to have been entered or imposed:

Provided that where the accused has paid a fine or part thereof, or any sum or part thereof by way of State costs or compensation in consequence of the sentence he shall not be entitled to a refund of that fine or sum.

(6) Before a suspended sentence is imposed by any court, the court shall make an order for the identification and finger printing of the offender.

When offender subject to suspended sentences convicted of subsequent offence.

304.

(1) Where an offender is convicted of a subsequent offence committed during the operational period, the court which so convicts him shall order that the suspended sentence shall take effect either immediately, or upon the expiration of a term of imprisonment which may have been imposed on the offender by such court in respect of the subsequent offence ;

Provided that the court may, in an appropriate case having regard to the extenuating circumstances under which the subsequent offence was committed or to the trivial nature of such offence-

(a) order that the suspended sentence shall take effect with the substitution of a lesser term for the original term;

(b) vary the original order under section 303 by substituting for the operational period specified therein an operational period expiring not later than five years from the date of the variation; or

(c) make no order with respect to the suspended sentence.


In every case where the court acts under this proviso it shall state its reasons therefor.

(2) Where a court deals with an offender in respect of a suspended sentence passed by another court, the court dealing with the offender shall notify the court which passed the sentence of the manner in which the offender was dealt with.

(3) An order made by a court under this section in respect of a suspended sentence shall, for the purpose of preferring, any appeal, be deemed to be a sentence passed on the offender by such court for the offence for which the suspended sentence was originally passed.

Discovery of further offence.

305.

(1) Where during the operational period any offender is convicted by a court of a subsequent offence but such court not being aware of the suspended sentence does not deal with the offender in respect of such sentence, any court may on receipt of information relating to such suspended sentence and the conviction for the subsequent offence, issue a summons requiring such offender to appear at the place and time specified therein or may issue a warrant for his arrest.

(2) A summons or warrant issued under subsection (1) shall direct the offender to appear or to be brought before the court by which he was convicted in respect of the subsequent offence and upon such offender appearing or being so brought, the court shall proceed to deal with him under subsection (1) of section 304 in respect of the suspended sentence.

CHAPTER XXV
CONDITIONAL DISCHARGE OF OFFENDERS, & c.
Power of court permit conditional release of offenders.

306.

(1) Where any person is charged before a Magistrate’s Court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to discharge the offender conditionally as hereinafter provided, the court may, without proceeding to conviction, either –

(a) order such offender to be discharged after such admonition as to the court shall seem fit; or

(b) discharge the offender conditonally on his entering into a recognizance, with or without sureties, to be of good behaviour, and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order of the court.

(2) Where any person has been convicted on indictment of any offence punishable with imprisonment, and the court is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to* discharge the offender conditionally as hereinafter provided, the court may, in lieu of imposing a sentence of imprisonment, make an order discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour, and to appear for sentence when called on at any time during such period, not exceeding three years as may be specified in the order.

(3) The court may, in addition to any order it may make under subsection (1) or subsection (2), order the offender to pay –

(i) compensation under section 17 (4); and

(ii) State costs in an amount not exceeding one thousand five hundred rupees as the court thinks fit.

(4) Where an order under this section is made by a Magistrate’s Court, the order shall, for the purpose of re-vesting or restoring stolen property, and of enabling the court to make orders as to the restitution or delivery of property to the owner and as to the payment of money upon or in connection with such restitution or delivery, have the like effect as a conviction.

Conditions of recognizance.

307. A recognizance under this Chapter may contain such conditions as the court may, having regard to the particular circumstances of the case, order to be inserted therein with respect to all or any of the following matters : –

(a) for prohibiting the offender from associating with thieves and other undesirable persons, or from frequenting undesirable places;

(b) as to abstention from intoxicating liquor, where the offence was drunkenness or an offence committed under the influence of drink;

(c) generally for securing that the offender should lead an honest and industrious life;

(d) providing that the offender, with his surety or sureties, if any, shall appear in chambers before the Magistrate of any Magistrate’s Court at such intervals as may be specified in the order.

Power to vary conditions of recognizance.

308. The court before which any person is bound by his recognizance under this Code to appear for conviction or sentence may, after notice to the offender, vary the conditions of the recognizance, and may, on being satisfied that the conduct of that person has been such that the recognizance should be discharged, discharge the recognizance.

Provision in case of offender failing to observe conditions of recognizance.

309.

(1) If the court before which an offender is bound by his recognizance under this Chapter to appear for conviction or sentence is satisfied by information on oath or affirmation that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension, or may, if it thinks fit, instead of issuing a warrant in the first instance, issue a summons to the offender and his sureties (if any) requiring him or them to attend at such court and at such time as may be specified in the summons.

(2) The offender, when apprehended, shall, if not brought forthwith before the court before which he is bound by his recognizance to appear for conviction or sentence, be brought before a Magistrate’s Court.

(3) The court before which an offender on apprehension is brought, or before which he appears in pursuance of such summons as aforesaid, may, if it is not the court before which he is bound by his recognizance to appear for conviction or sentence, remand him to custody or release him on bait until he can be brought before the last-mentioned court.

(4) A court before which a person is bound by his recognizance to appear for conviction and sentence, on being satisfied that he has failed to observe any condition of his recognizance may forthwith, without further proof of his guilt, convict and sentence him for the original offence; or, if the case was one in which the court in the first instance might, under the Children and Young Persons Ordinance, have ordered the offender to be sent to an approved or certified school, and the offender is still apparently under the age of sixteen years, make such an order.

Power to make rules.

310. Rules for carrying the provisions of this Chapter into effect may be made under section 453.

CHAPTER XXVI
OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES
President may suspend or recoil sentence on conditions.

311.

(1) When any person has been sentenced to punishment for an offence the President 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 for the suspension or remission of a sentence the President 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.

(3) If the person in whose favour a sentence has been suspended or remitted fails to fulfil the conditions prescribed by the President, the President may cancel such suspension or remission; whereupon such person may if at large be arrested by any police officer without warrant and remanded by a Magistrate’s Court to undergo the unexpired portion of the sentence.

(4) Anything herein contained shall not be deemed to interfere with the right of the President to grant pardons, reprieves, respites, or remissions of punishment.

President may commute sentence.

312. The President may, without the consent of the person sentenced, commute any one of the following sentences for any of the commuted sentences indicated in the corresponding entry: –

Sentence Commuted Sentence
Death Rigorous or simple imprisonment for life or for any other term.
Rigorous imprisonment Any lesser term of rigorous imprisonment, or any term of simple imprisonment not exceeding the term to which such person might have been sentenced, or fine.
Simple imprisonment Any lesser term of simple imprisonment, or fine.
Meaning of the ” President” in this Chapter.

313. In this Chapter the expression shall mean the President of the Republic of Sri Lanka.

CHAPTER XXVII
OF PREVIOUS ACQUITTALS OR CONVICTIONS
No person to be tried twice for same offence.

314.

(1) A person who has once been tried by a court of competent Jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquittal remain in force not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 176 or for which he might have been convicted under section 177.

(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 subsection (1) of section 175.

(3) A person convicted of any offence constituted by any act causing consequences which together with 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.

Illustrations

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards 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 it appears from the facts that A committed robbery at the time the murder was committed. He may afterwards be charged with and tried for robbery.

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

(d) A is charged 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 with and convicted 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 subsection (3) of this section.

Plea of previous acquittal or conviction.

315.

(1) The plea of a previous acquittal or conviction may be pleaded either orally or in writing and may be in the following form or to the following effect: –

” the defendant says that by virtue of section 314 of the Code of Criminal Procedure Act he is not liable to be tried “.

(2) Such plea may be pleaded together with any other plea, but the issue raised by such plea shall be tried and disposed of before the issues raised by the other pleas are tried.

(3) On the trial of an issue on a plea of a previous acquittal or conviction the depositions transmitted to the court on the former trial, together with the Judge’s notes if available and the depositions transmitted to the court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges.

PART VII
OF APPEAL, REFERENCE AND REVISION
CHAPTER XXVIII
OF APPEALS
An appeal not to lie except as provided for.

316. An appeal shall not lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force.

A – APPEALS FROM MAGISTRATES COURTS TO THE COURT OF APPEAL
Appeals not to lie in certain cases.

317.

(1) An appeal shall not lie from a conviction –

(a) where in the case of a male offender under sixteen years of age the sentence is one of whipping only;

(b) where an accused has under section 183 made an unqualified admission of his guilt and been convicted by a Magistrate’s Court.

(2) An appeal upon a matter of law shall lie in all cases except in the case referred to in paragraph (a) of subsection (1).

Appeal from acquittal.

318. An appeal shall not lie from an acquittal by a Magistrate’s Court except at the instance or with the written sanction of the Attorney-General.

Appeal against refusal to the issue process.

319. Where a Magistrate’s Court has refused to issue process a mandamus shall to compel such court to issue such process, but an appeal shall not lie against such refusal except at the instance or with the written sanction of the Attorney-General.

Right of appeal.

320.

(1) Subject to the provisions of sections 317, 318 and 319 any person who shall be dissatisfied with any judgment or final order pronounced by any Magistrate’s Court in a criminal case or matter to which he is a party may prefer an appeal to the Court of Appeal against such judgment for any error in law, or in fact –

(a) by lodging within fourteen days from the time of such judgment or order being passed or made, with such Magistrate’s Court a petition of appeal addressed to the Court of Appeal, or

(b) by stating within the time aforesaid to the Registrar of such court or to the jailer of the prison in which he is for the time being confined his desire to appeal and the grounds therefor, providing at the same time a stamp of the value of five rupees, and it shall thereupon be the duty of such Registrar or jailer as the case may be;, to prepare a petition of appeal and lodge it with the court by which such judgment or order was pronounced.

(2) Subject to the relevant provision of section 317 the Attorney-General may prefer an appeal to the Court of Appeal against any judgment or final order pronounced by a Magistrate’s Court in any criminal case or matter, and where he so appeals, or where he sanctions an appeal, the time within which’ the petition of appeal must be preferred shall be twenty-eight days.

Explanation. –

An order made under section 154 committing an accused for trial or an order made under section 153 discharging an accused is not a judgment or final order.

Computation of time.

321.

(1) In computing the time within which an appeal must be preferred, the day on which the judgment or order complained of was pronounced shall be included, but all public holidays shall be excluded.

(2) If the time for preferring a petition of appeal expires on a day on which the office of the court is closed the appeal shall be deemed in time if such petition be preferred on the first day next thereafter on which such office is open.

What petition of appeal shall state.

322.

(1) Every petition of appeal shall state shortly the grounds of appeal and shall be signed by the appellant or his attorney-at-law.

(2) Where the appeal is on a matter of law the petition shall contain a statement of the matter of law to be argued and shall bear a certificate by an attorney-at-law that such matter of law is a fit question for adjudication by the Court of Appeal.

(3) Every such petition shall bear a stamp of five rupees:

Provided that such stamp shall not be necessary –

(a) if the appeal is preferred by the Attorney-General under section 320 (2), or

(b) in the case of an appeal against a judgment or final order pronounced by a Magistrate’s Court in any proceedings instituted on a written report made under section 136 (1)(b), if the appeal is preferred by the person who made such report:

Provided further that the court from which an appeal is preferred may if it sees fit allow the payment of the stamp fee to stand over until judgment on the appeal shall have been given.

(4) If the appeal be decided in whole or in part in favour of the appellant the amount of stamp fee when such fee has been paid shall be returned to him.

(5) If the appeal be decided against the appellant such stamp fee when such fee has not been paid shall be paid by him or recovered from him in the way of fine unless the Court of Appeal shall deem fit to remit all or any part of such stamp fee, in which case only such part as shall not be so remitted shall be recovered.

Appellant to be released on giving security.

323.

(1) When an appeal has been preferred the court from which the appeal is preferred shall order the appellant if in custody to be released on his entering into a recognizance in such sum and with or without a surety or sureties as such court may direct conditioned to abide the judgment of the Court of Appeal and to pay such costs as may be awarded :

Provided always that the appellant may if the court from which the appeal is preferred thinks fit instead of entering into a recognizance give such other security by deposit of money with such court or otherwise as that court may deem sufficient.

(2) Upon the appellant’s entering into such recognizance or giving .such other security as aforesaid he shall be released from custody.

(3) Such recognizance may if the appellant is in prison be entered into before the superintendent or jailer of the prison and if so entered into shall be as valid in all respects as if it had been entered into before the court from which the appeal is preferred ; and for this purpose the court shall endorse on the warrant of committal the amount and nature of the security which is to be given in case an appeal is preferred.

(4) when a person sentenced to a term of rigorous imprisonment has preferred an appeal, but is unable to give the required recognizance or other security he shall be detained in custody without hard labour until the judgment of the Court of Appeal is made known to. the superintendent of the prison.

(5) The Court of Appeal may order that the time so spent by such appellant in custody or any part thereof shall be reckoned as part of the term of his sentence.

Proceedings to be forwarded to Court of Appeal and notice to be given to party in whose favour the judgment or order appealed against was pronounced.

(6) On a petition of appeal being lodged the Magistrate shall transmit the record of the case to the Court of Appeal together with the petition of appeal and shall forthwith issue notice thereof to the party, whether complainant or accused, in whose favour the judgment or order appealed against was pronounced or made or adversely to whom the appeal is preferred.

Procedure in Court of Appeal on appeal.

324.

(1) When the record and petition of appeal have been transmitted to the Court of Appeal the Registrar shall number the appeal and enter it on the list of appeals and such list shall be kept suspended in the Registry of the Court of Appeal.

(2) The appeal shall come on for hearing in its order without further notice to the parties concerned:

Provided that the court may of its own motion or on the application of a party concerned accelerate or postpone the hearing of an appeal upon any such terms as to the prosecution or the costs of the appeal or otherwise as it may think fit.

Appellant to be heard first.

325.

(1) When the appeal comes on for hearing the appellant if present shall be first heard in support of the appeal and then the respondent if present shall be heard against it.

(2) If the appellant does not appear to support his appeal the court shall consider the appeal and may make such order thereon as it may deem fit.

Procedure if respondent not present.

326. If at the hearing of an appeal the respondent is not present and the court is not satisfied that the notice of appeal was duly served upon him the court may adjourn the hearing of the appeal to a future day for his appearance and in that case shall issue the requisite notice to him for service through the Fiscal, but unless the court is so satisfied as aforesaid it shall not, in the absence of the respondent, make any order to his prejudice.

Arrest of appeal from acquittal.

327. When an appeal is presented against an acquittal the Court of Appeal may issue a warrant directing that the accused be arrested and brought before it and may commit him to prison pending the disposal of the appeal or admit him to bail.

Power of Court of appeal on appeals.

328. At the hearing of the appeal the court may if it considers that there is no sufficient ground for interfering dismiss the appeal or may –

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made or that the accused be re-tried or committed for trial as the case may be or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction –

(i) reverse the verdict and sentence and acquit or discharge the accused or order him to be re tried by a court of competent jurisdiction or committed for trial, or

(ii) alter the verdict maintaining the sentence, or with or without altering the verdict increase or reduce the amount of the sentence or the nature thereof;

(c) in an appeal from any other order, alter or reverse such order;

Provided always that the sentence awarded on an appeal shall not exceed the sentence which might have been awarded by the court of first instance.

Court of Appeal may lake further evidence or direct it to be taken.

329.

(1) In dealing with an appeal under this Chapter the Court of Appeal if it thinks additional evidence to be necessary, may either take such evidence itself or direct it to be taken by any Magistrate.

(2) When the additional evidence is taken the Magistrate taking the same shall transmit the evidence so taken duly certified to the Court of Appeal together with his opinion on such evidence.

(3) Unless the Court of Appeal otherwise directs the accused or his pleader shall be present when any additional evidence is taken under this section and section 328.

(4) The taking of such evidence shall be deemed an inquiry under Chapter XV.

Judgment in appeal to be given in open court.

330.

(1) On the termination of the hearing of the appeal the Court of Appeal shall either at once or on some future day, which shall then be appointed for the purpose, deliver judgment giving reasons for its decision in open court.

(2) On the day so fixed, if the court is not prepared to give its judgment, a yet future day may be appointed and announced for the purpose.

B – APPEALS FROM THE HIGH COURT TO THE COURT OF APPEAL AND APPLICATIONS FOR LEAVE TO APPEAL
Filing of petition of appeal or application for leave to appeal.

331.

(1) An appeal under this Chapter may be lodged by presenting a petition of appeal or application for leave to appeal to the Registrar of the High Court within fourteen days from the date when the conviction, sentence or order sought to be appealed against was pronounced :

Provided that a person in prison may lodge an appeal by stating within the time aforesaid to the jailer of the prison in which he is for the time being confined his desire to appeal and the grounds therefor and it shall thereupon be the duty of such jailer to prepare a petition of appeal and lodge it with the High Court where the conviction, sentence or order sought to be appealed against was pronounced.

(2) In computing the time within which an appeal may be preferred, the day on which the judgment or final order appealed against was pronounced shall be included, but all public holidays shall be excluded.

(3) If the time for preferring a petition of appeal expires on a day on which the office of the court is closed the appeal shall be deemed to be in time if such petition be preferred on the first day next thereafter on which such office is open.

(4) The petition of appeal shall be distinctly written on good and suitable paper, signed by the appellant or his attorney-at-law and dated and shall contain the following particulars: –

(a) the sessions of the High Court where the conviction, sentence or order appealed against was pronounced,

(b) the number of the case,

(c) the names and addresses of the appellant and the respondent,

(d) the address to the Court of Appeal,

(e) the date of pronouncement of the judgment or order as the case may be sought to be appealed against and the nature of such pronouncement,

(f) a plain and concise statement of the grounds of appeal,

(g) the relief claimed.

(5) Stamps to the value of five rupees shall be affixed by such appellant but where the appeal is by the Attorney-General or from a sentence of death a stamp fee is not required.

Appeal may be amended or rejected.

332. If the appeal is not given in the manner prescribed herein, it may be returned to the appellant for the purpose of being amended, within a time to be fixed by the court, or be amended then and there. If it is not amended as directed, the court may for reasons to be recorded by it, reject it. When any appeal is amended, the Judge or such other officer of his court as he shall appoint in that behalf shall attest the amendment by his signature.

Stay of further proceedings upon acceptance of appeal.

333.

(1) Upon the appeal being accepted all further proceedings in such case shall be stayed and said appeal together with the record of the case and eight copies thereof and the notes of evidence taken by the Judge shall be forwarded as speedily as possible to the Court of Appeal.

(2) When an appeal against an acquittal is lodged, the court may issue a warrant directing that the accused be arrested and brought before it and may commit him to prison pending the determination of the appeal or admit him to bail.

(3) When an appeal against a conviction is lodged, the High Court may subject to subsection (4) admit the appellant to bail pending the determination of his appeal. An appellant who is not admitted to bail shall pending the determination of the appeal be treated in such manner as may be prescribed by rules made under the Prisons Ordinance.

(4) Where the accused is sentenced to death, execution shall be stayed and he shall be kept on remand in prison pending the determination of the appeal.

(5) The time during which an appellant, pending the determination of his appeal is admitted to bail and (subject to any directions which the Court of Appeal may give to the contrary on any appeal) the time during which the appellant if in custody is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his sentence; and, any imprisonment of the appellant whether it is under the sentence imposed by the High Court or the Court of Appeal shall subject to the directions or order of the Court of Appeal be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined and, if he is not in custody, as from the day on which he is received into prison under the sentence.

Determination of appeal in cases where trial was by jury.

334.

(1) The Court of Appeal on any appeal against conviction on a verdict of a jury shall allow the appeal if it thinks that such verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of any law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Code the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment of acquittal to be entered :

Provided that the Court of Appeal may order a new trial if it is of opinion that there was evidence before the jury upon which the accused might reasonably have been convicted but for the irregularity upon which the appeal was allowed.

(3) Anything in this section shall not affect the power of the Court of Appeal to order a new trial when the trial at which the conviction was had was a nullity by reason of any defect in the constitution of the court or otherwise.

(4) If it appears to the Court of Appeal that an appellant, though not properly convicted on some charge or part of the indictment, has been properly convicted on some other charge or part of the indictment, the court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the charge or part of the indictment on which the court considers that the appellant has been properly convicted.

(5) Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the verdict of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.

(6) Where on the conviction of the appellant the jury have found a special verdict, and the Court of Appeal considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.

Determination of appeals incases where trial was without a jury.

335.

(1) In an appeal from a verdict of a Judge of the High Court at a trial without a jury the Court of Appeal may if it considers that there is no sufficient ground for interfering dismiss the appeal.

(2) In an appeal from a conviction by a Judge of the High Court at a trial without a jury the Court of Appeal may –

(a) reverse the verdict and sentence-and acquit or discharge the accused or order him to be re-tried ; or

(b) alter the verdict maintaining the sentence or without altering the verdict increase or reduce the amount of the sentence or the nature thereof or substitute a conviction for a different offence of which the accused person could have been found guilty on the indictment and pass such sentence as may be warranted by law in substitution for the sentence passed.

Appeals from sentences.

336. On an appeal against the sentence whether passed after trial by jury or without a jury, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence, and pass other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as it thinks ought to have been passed and in any other case shall dismiss the appeal.

Appeals from acquittals.

337.

(1) In an appeal from an order of acquittal, the Court of Appeal may reverse such order and direct the accused to be re tried or find him guilty of the same or a different offence of which the accused person could have been found guilty on the indictment and pass sentence on him according to law.

(2) In an appeal from any other order, the Court of Appeal may alter or reverse or set aside such order or make such order in substitution for the order of the High Court as may be warranted by law.

Where appellant is guilty but insane.

338. If on any appeal it appears to the Court of Appeal that, although the appellant was guilty of the act or omission charged against him, he was, at the time the act was done or omission made incapable by reason of unsoundness of mind of knowing the nature of the act or that it was wrong or contrary to law, the court may quash the sentence passed at the trial and order that the appellant be kept in safe custody in such place and manner as the court thinks fit, and shall report the case for the orders of the Minister. Upon such report, the appellant shall, for the purposes of Chapter XXXI, be deemed to be an accused whose case had been reported for the orders of the Minister under subsection (1) of section 381.

Disposal of property on conviction.

339.

(1) The operation of any order for the disposal of property made by the High Court under Chapter XXXVIII of this Code on the conviction of any person on indictment, and the operation in case of any such conviction of the provisions of subsection (1) of section 24 of the Sale of Goods Ordinance as to the revesting of the property in stolen goods on conviction, shall (unless the court before which the conviction takes place directs to the contrary in any case in which, in its opinion, the title to the property is not in dispute) be suspended –

(a) in any case until the expiration of fourteen days after the date of the conviction; and

(b) in any case where appeal has been filed until the determination of the appeal;

and in cases where the operation of any such order, or the operation of the said provisions is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal. Provisions may be made by rules made under section 453 or by order of court for securing the safe custody of any property pending suspension of the operation of any such order or of the said provisions.

(2) The Court of Appeal may by order annul or vary any order made on a trial for the disposal of any property, although the conviction is not quashed; and the order, if annulled, shall not take effect, and, if varied, shall take effect as so varied.

Filing of application for leave to appeal.

340. An application for leave to appeal may be lodged by presenting it to the Registrar of the Court of Appeal within fourteen days from the date when the conviction, sentence or order sought to be appealed against was pronounced and the provisions of the proviso to subsection (1) of section 331 and subsections (2), (3) and (4) of that section shall mutatis mutandis apply to such application,

Disposal of application* for leave to appeal.

341. On an application for leave to appeal the Court of Appeal may –

(a) grant such leave; or

(b) reject the application.

High Court to forward record to Court of Appeal on leave being granted.

342. Upon leave to appeal being granted on an application for leave to appeal the Registrar of the Court of Appeal shall so inform the High Court and the provisions of section 333 shall thereafter become applicable mutatis mutandis to such application.

LISTING AND HEARING OF APPEALS AND APPLICATIONS FOR LEAVE TO APPEAL
Appeals and applications lobe numbered and entered in the Register of Appeals.

343.

(1) On receipt of the appeal or an application for leave to appeal the Registrar of the Court of Appeal shall forthwith number the appeal or application as the case may be, enter such number and the names of the parties on the Register of Appeals and notify the parties. Thereafter the appeal or application as the case may be shall, be entered on the appropriate Roll of Pending Appeals set down for hearing.

(2) The list of appeals and applications on the Roll of Pending Appeals shall be exhibited outside the Registry of the Court of Appeal.

Appeals and applications to be listed for hearing.

344. An appeal or application for leave to appeal entered on the appropriate Roll of to be listed Pending Appeals shall come on in the order of its position on the roll without further notice to the parties.

Where leave to appeal is granted application deemed to be an appeal.

345. Where leave to appeal is granted at the hearing of an application for leave to appeal, such application will thereafter be deemed to be an appeal and come on for hearing as directed by the Court of Appeal.

Appeal or application for leave to appeal to be exhibited for at least seven days.

346. Any appeal or application for leave to appeal shall not be listed for hearing until seven days at least shall have expired after such appeal or application as the case may be was entered on the roll and exhibited in the manner required in section 343.

Acceleration and postponement of appeals and application for leave to appeal.

347. The Court of Appeal may, of its own motion or on application of a party accelerate or postpone the hearing of an appeal or. application for leave to appeal upon such terms as it may think fit.

Consolidation of appeals and applications for leave to appeal.

348. Where there are two or more appeals or applications for leave to appeal arising out or the same matter and the Court of Appeal is of opinion that it would be convenient for the court and for all the parties concerned if they are consolidated, the court may so direct and such consolidated appeals and applications shall for all purposes thereafter be deemed to be a single appeal or application as the case may be.

Procedure at the hearing.

349.

(1) At the hearing of the appeal or application the court may call upon the appellant or applicant as the case may be and the respondent or their attorneys-at-law to make their submissions.

(2) Subject to the provisions of subsection (1), the appellant or the applicant shall first be heard in support of the appeal or application. The court shall then, if it does not at once dismiss the appeal or application or affirm the judgment or order appealed from, hear the respondent and in such case the appellant or applicant shall be entitled to reply.

(3) If the appellant or applicant does not appear to support the appeal or application the court shall consider the appeal or application and may make such order thereon as it may deem fit.

Appellant or applicant in custody entitled to be present.

350. An appellant or applicant who is in custody shall be entitled to be present, if he so desires, at the hearing of his appeal or application.

Supplementary powers of court.

351. In dealing with an appeal, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice –

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) take additional evidence itself or direct it to be taken by any judge of an original court or other person appointed by the Court of Appeal for the purpose;

Provided that when additional evidence is taken other than before the Court of Appeal the officer taking the same shall transmit the evidence so taken duly certified to the Court of Appeal together with his opinion on such evidence.

Delivery of Judgment.

352.

(1) On the termination of the hearing of the appeal or application the Court of Appeal shall, either at once or on some future date which shall then be appointed for the purpose, pronounce judgment in open court.

(2) On the day so fixed, if the court is not prepared to give its judgment a yet future date may be appointed and announced for the purpose.

(3) The judgment of the Court of Appeal shall be taken down in writing, shall be signed and dated by the Judges, and state –

(a) the points for determination ;

(b) the decision of the Judges thereon;

(c) the reasons which’ have led to the decision; and

(d) the relief granted,

GENERAL PROVISIONS
Legal assistance to appellant.

353. The Court of Appeal may at any time on the application of the appellant assign to an appellant in any criminal case, matter or proceeding any attorney-at-law if, in the opinion of the court, it appears desirable in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain that aid.

Expenses.

354. The expenses of any attorney-at-law assigned to an appellant under this Chapter, and the expenses of any witnesses attending on the order of the court or examined in any proceedings incidental to the appeal and all expenses of, and incidental to, any examination of witnesses conducted by any person appointed by the court for the purpose, shall be defrayed, up to an amount allowed by the court, but subject to such rates and scales of payment as may be prescribed by rules made under section 453, Until such rules are made the rules relating to rates and scales of payment in force immediately before the appointed date shall continue in force.

Effect of error, omission or default in complying with the provisions of this Code.

355.

(1) Where there is any error, omission or default in complying with the provisions of this Code relating to the lodging of an appeal, the High Court shall, notwithstanding such error, omission or default forward to the Court of Appeal the petition of appeal together with all the relevant papers and proceedings of the case.

(2) The Court of Appeal shall not exercise the powers vested in such court by this Code to reject or dismiss an appeal on the ground only of any error, omission or default on the part of the appellant in complying with the provisions of this Code unless material prejudice has been caused thereby to the respondent to such appeal.

(3) The Court of Appeal shall, in the case of any appeal referred to in subsection (2) which is not rejected or dismissed by such court, direct the appellant to comply with such directions as the court may deem necessary for the purpose of rectifying, supplying or making good any error, omission or default so referred to within such time and upon such conditions as may be specified in such directions, and shall reject or dismiss the appeal if the appellant fails to comply with such directions.

Order of Court of Appeal to be certified to High Court.

356.

(1) Whenever a case is decided on appeal by the Court of Appeal under this Chapter the court shall certify its order under its seal to the High Court and shall return to the High Court the record and petition of appeal accompanied by a copy of the reasons given by the Court of Appeal for its order.

(2) The High Court to which the order of the Court of Appeal is certified shall thereupon make such orders as are conformable to the order so certified and if necessary the record shall be amended in accordance therewith.

(3) The High Court shall then comply with the order of the Court of Appeal.

Costs.

357. The Court of Appeal shall have power in all proceedings under this Chapter to award costs to be paid by or to the parties thereto as the said Court shall think fit:

Provided that such an order shall not in any case be made against the Attorney-General.

C – ABATEMENT AND WITHDRAWAL OF APPEALS AND APPLICATIONS FOR LEAVE TO APPEAL
Abatement.

358.

(1) Every appeal and application for leave to appeal to the Court of Appeal under this Code shall abate on the death of the accused:

Provided that where the appeal or application is against a conviction, a person aggrieved may with the leave of the court hearing the appeal intervene and prosecute the appeal or application only in so far as the finding of guilt is concerned.

(2) The expression ” person aggrieved” shall have the same meaning as in section 16 of the Judicature Act.

Withdrawal of appeals or applications for leave to appeal.

359. Any appellant or applicant as the case may be who has lodged an appeal or application to the Court of Appeal under this Code may at any time apply to the Court of Appeal to withdraw his appeal or application and such court may after such inquiry as it considers necessary, permit the withdrawal of such appeal or application on such terms as it may think fit to impose and thereupon the appeal or application shall stand dismissed.

D – STATE REPRESENTATION AT APPEALS
State representation.

360.

(1) The Attorney-General shall appear for the State in every appeal to the Court of Appeal under this Code to which the State or a public officer is a party and all such documents, exhibits and other things connected with the proceedings as the Attorney-General may require for the purpose of his duties under this section shall be transmitted to him by the Registrar of the court having custody of such documents, exhibits and things.

(2) The Solicitor-General or a State Counsel or an attorney-at-law specially or generally authorized by the Attorney-General in that behalf shall be entitled to appear for the State in place of the Attorney-General in any such appeal.

CHAPTER XXIX
OF REFERENCE AND REVISION
Reservation of points of law.

361.

(1) Any Magistrate’s Court acting in summary jurisdiction may if it thinks fit reserve for the consideration of the Court of Appeal any question of law arising in the proceedings whenever any person shall have been convicted and sentenced to any penalty or punishment.

(2) Every question of law so reserved shall be submitted to the said court in the shape of a special case.

(3) Every such special case shall be drawn up by the Magistrate of the court before which the proceedings are held and shall set out shortly the facts which are considered by the Magistrate to be proved and shall state the question of law which shall have been reserved for the opinion of the court.,

(4) Every such special case shall be sent by the Magistrate to the Registrar of the Court of Appeal and shall be set down for argument in such manner as the- Court of Appeal may direct.

(5) The person convicted shall pending the decision on the special case be remanded to prison or if the court thinks fit admitted to bail.

Determination and orders thereon.

362. The Court of Appeal shall hear and determine the question of law arising on such special case and shall thereupon affirm, amend, or reverse the determination in respect of which the special case has been stated or may make such order in relation to the matter as to the Court of Appeal may seem fit:

Provided always that a Magistrate who shall state and deliver a special case in pursuance of this Code shall not be liable to any costs in respect thereto.

Powers to rewove questions arising in High Court.

363.

(1) When any person has in a trial before a Judge of the High Court been convicted of an offence and sentenced, the Judge if he thinks fit may reserve and refer for the decision of the Court of Appeal any question of law which has arisen on the trial, stating in a case signed by him such question with the special circumstances upon which the same shall have arisen.

(2) If the Judge reserves any such question the person convicted shall pending the decision thereon be remanded to prison or if the Judge thinks fit be admitted to bail, and the Court of Appeal shall have power to hear and finally determine such question and thereupon to reverse, affirm, or amend the judgment or to make such order as justice may require.

(3) When any person has in a trial before a Judge of the High Court been convicted of an offence and the Attorney-General is of opinion that any question of law arising on such trial which has not been reserved under this section ought to be further considered he may certify accordingly under his hand and thereupon the Court of Appeal shall have full power and authority to review the case or such part of it as may be necessary and finally determine such question and thereupon to reverse, affirm, or amend the judgment or to make such other order as justice may require in like manner as though such question had been reserved under subsection (1).

Court of Appeal may call for record of High court or Magistrate’s Court.

364. The Court of Appeal may call for and examine the record of any case, whether already tried or pending trial in the High Court or any Magistrate’s Court, for the purpose of satisfying itself as to the legality or propriety of any sentence or order passed therein or as to the regularity of the proceedings of such court.

Power of court on revision.

365.

(1) The Court of Appeal may in any case the record of the proceedings of which has been called for by itself or which otherwise comes to its knowledge in its discretion exercise any of the powers conferred on it by Chapter XXVIII.

(2) Any order under this section shall not be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or-by attorney-at- law in his own defence.

(3) Anything in this section shall not be deemed to authorize the Court of Appeal to convert a finding of acquittal into one of conviction.

Optional with court to hear panics on review.

366. A party has no right to be heard either personally or by attorney-at-law before the Court of Appeal when exercising its powers of revision :

Provided that the court may if it, thinks fit when exercising such powers hear any party either personally or by attorney-at-law.

When record called for by Court of Appeal, Judge of the High Court or Magistrate may submit statement of grounds of decision.

367. When the record of any case is called for by the Court of Appeal under section 364 the Judge of the High Court or Magistrate may submit with the record a statement setting forth the grounds of his decision or order and any facts which he thinks material, and the court shall consider such statement before overruling or setting aside the said decision or order.

Judge of High Court or Magistrate to carry into effect orders of Court of Appeal.

368.

(1) When a case is revised under this Chapter by the Court of Appeal such court shall certify its order under its seal to the court by which the verdict, sentence, or order revised was recorded or passed, and shall return to such court the record accompanied by a copy of the reasons given by the Court of Appeal for its order.

(2) The court to which the order is so certified shall thereupon make such orders as are conformable to the order so certified and if necessary the record shall be amended in accordance therewith.

PART VIII
SPECIAL PROCEEDINGS
CHAPTER XXX
INQUESTS OF DEATH
Inquests of death.

369. An inquest of death shall not be held except under the provisions of this Code.

Duty of inquirer.

370.

(1) Every inquirer on receiving information that a person –

(a) has committed suicide; or

(b) has been killed by an animal or by machinery or by an accident; or

(c) has died suddenly or from a cause which is not known,

shall immediately proceed to the place where the body of such deceased person is and there shall make an inquiry and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body and such marks, objects, and circumstances as in his opinion may relate to the cause of death and stating in what manner such marks appear to have been inflicted.

(2) The report shall be signed by such inquirer and shall be forthwith forwarded to the nearest Magistrate.

(3) If the report or other material before him discloses a reasonable suspicion that a crime has been committed the Magistrate shall take proceedings under Chapter XIV and XV and in such event the record of the inquiry and the inquirer’s report shall be annexed to the record of the proceedings before the Magistrate.

(4) Anything herein contained shall not preclude a Magistrate from forthwith holding an inquiry under the powers vested in him by section 9, whenever any of the events mentioned in paragraphs (a), (b) and (c) of subsection (1) of this section have been brought to his notice.

Powers of inquirer.

(5) Any inquirer may, for the purpose of any inquiry under this Chapter, if he considers it expedient, issue process to compel the attendance of any witness to give evidence before him, or to produce any document or other thing.

(6) If any person so summoned fails or neglects to attend at the time and place specified in such summons, the inquirer may issue his warrant for the apprehension and production before him of such person.

(7) Every person who so fails to attend, or who refuses to take the oath of a witness, or refuses to answer any question which shall be legally asked of him, or fails or refuses to produce any document or other thing, shall be guilty of an offence, and shall be liable on conviction thereof to a fine not exceeding one hundred rupees, or to imprisonment of either description for any period not exceeding three months, or to both.

Death of a person in custody of police or in a mental or leprosy hospital or prison.

371.

(1) When any person dies while in the custody of the police or in a mental or leprosy hospital or prison, the officer who had the custody of such person or was in charge of such hospital or prison, as the case may be, shall forthwith give information of such death to a Magistrate of the Magistrate’s Court within the local limits of whose jurisdiction the body is found, and such Magistrate shall view the body and hold an inquiry into the cause of death.

(2) For the purposes of an inquiry under this section a Magistrate shall have all the powers which he would have in holding an inquiry into an offence.

Evidence and finding to be recorded.

372.

(1) The Magistrate or inquirer holding an inquiry prescribed under this Chapter shall record the evidence and his finding thereon.

(2) The place in which an inquiry of death under this Chapter is held shall be a place open to the public. But a Magistrate or inquirer conducting an inquiry of death may on special grounds of public policy or expediency in his discretion exclude the public at any stage of the inquiry from the place in which the inquiry is being held.

Post-mortem examinations.

373.

(1) The Magistrate or any inquirer empowered in that behalf by the Minister shall, if he considers it expedient, call upon the Government medical officer of the district, or any other medical practitioner, to hold a post-mortem examination of the dead body, and to report to such Magistrate or inquirer regarding the cause of death.

(2) For the purposes of the post-mortem examination under subsection (1), the Magistrate may, if the dead body has already been buried, cause that body to be disinterred.

CHAPTER XXXI
PERSONS OF UNSOUND MIND
Procedure in case of accused being of unsound mind.

374.

(1) When a Magistrate’s Court holding an inquiry or a trial has reason to believe that the accused is of unsound mind and consequently incapable of making his defence it shall inquire into the fact of such unsoundness and shall cause such person to be examined by the Government medical officer of the district or some other medical officer, and thereupon shall examine such officer as a witness and shall reduce the examination to writing.

(2) If the Magistrate’s Court is of opinion that the accused is of unsound mind and consequently incapable of making his defence it shall postpone further proceedings in the case.

Procedure in case of person committed before High Court being of unsound mind.

375.

(1) If any person Committed for trial before the High Court appears to the court at his trial to be of unsound mind and consequently incapable of making his defence, the jury or (where the trial is without a jury) the Judge of the High Court shall in the first instance try the fact of such unsoundness and incapacity, and if satisfied of the fact shall find accordingly and thereupon the trial shall be postponed.

(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.

Release of person of is unsound mind pending investigation or trial.

376.

(1) Whenever an accused is found to be of unsound mind and incapable of making his defence the court, if the case one in which bail may be taken, 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 court or such officer as the court appoints in this behalf.

(2) If the case is one in which bail may not be taken or if sufficient security is not given, the court shall report the case to the Minister and the Minister may by writing under the hand of the Secretary to the Ministry order the accused to be confined in a mental hospital or other suitable place of safe custody and the court shall give effect to such order.

Resumption of inquiry or trial.

377.

(1) Whenever an inquiry or a trial postponed under sections 374 and 375 the of court may at any time resume the inquiry or 11/161 commence the trial de novo and require the accused to appear or be brought before such court.

(2) When the accused has been released under section 376 and the sureties for his appearance produce him to the officer whom the court appoints in this behalf the certificate of such officer that the accused is capable of making his defence shall be receivable in evidence.

Procedure on accused appearing before court.

378.

(1) If, when the accused appears or is again brought before the court, the court considers him capable of making his defence, the inquiry or trial shall proceed.

(2) If the court considers the accused person to be still incapable of making his defence the court shall again act according to the provisions of section 374 or section 376, as the case may be.

When accused appears to have been of unsound mind.

379. When the accused appears to be of sound mind at the time of the inquiry and the Magistrate’s Court is satisfied from the evidence given before the court that there is reason to believe that the accused committed an act which if 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 court shall proceed with the case as directed by Chapter XV.

Judgment of acquittal on ground of unsoundness of mind.

380. 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 verdict shall state specifically whether he committed the act or not.

Person acquitted on ground of unsoundness of mind to be kept in safe custody.

381.

(1) Whenever the verdict states that the accused committed the act alleged the court before which the trial has been held shall, if such act would but for the incapacity found have constituted an offence, or order such person to be kept in safe custody in such place and manner as the court thinks fit and shall report the case for the orders of the Minister.

(2) The Minister may by writing under the hand of the Secretary to the Ministry order such person to be confined in a .mental hospital, prison, or other suitable place of safe custody until further orders.

Person confined under this Chapter to be visited by Commissioner of Prisons or Visitors of the mental hospital.

382. When any person is confined under the provisions of this Chapter the Commissioner of Prisons if such person is confined in a prison, or the Visitors of the mental hospital or any two of them if he is confined in a mental hospital may visit him in order to ascertain his state of mind ;. and he shall be visited once at least in every six months by such Commissioner or by two of such Visitors as aforesaid, and such Commissioner or Visitors shall make a special report to the Minister as to the state of mind of such person.

Procedure where person confined under section 376 is reported capable of making his defence.

383. If such person is confined under the provisions of section 376 and such Commissioner or Visitors shall certify that in his or their opinion such person is capable of making his defence he shall be taken before the court at the instance of which he was confined at such time as such court appoints, and the court shall deal with such person under the provisions of section 378 and the certificate of such Commissioner or Visitors as aforesaid shall be receivable as evidence.

Procedure where person confined under section 376 or 381 is declared fit to be discharged.

384. If such person is confined under the provisions of section 376 or section 381 and such Commissioner or Visitors shall certify that in his or their judgment he may be discharged without danger of his doing injury to himself or to any other person, the Minister may thereupon order him to be discharged or to be detained in custody or to be transferred to a mental hospital if he has not been already sent to a mental hospital; and in case the Minister orders him to be transferred to a mental hospital, he may appoint a committee of inquiry consisting of a Magistrate and two medical officers to make formal inquiry into the state of mind of such person, taking such evidence as is necessary, and to report to the Minister who may order his discharge or detention as he thinks fit.

Delivery of person confined to care of relative or friend.

385.

(1) Whenever any relative or friend of any person confined under the provisions of section 376 or section 381 desires that the person shall be delivered over to his care and custody the Minister, upon ‘ the application of any relative or friend and on his giving security to the satisfaction of the Minister that the person delivered shall be properly taken care of and shall be prevented from doing injury to himself or to any other person, may order such person to be delivered to such relative or friend.

(2) Whenever such person is so delivered it shall be upon condition that he shall be produced for the inspection of such officer at such times as the Minister directs.

(3) The provisions of sections 382 and 384 shall mutatis mutandis apply to persons delivered under the provisions .of this section and the certificate of the inspecting officer appointed under this section shall be receivable as evidence.

Person suspected to be of unsound mind where and how to be remanded.

386. A Magistrate proceeding under section 384 may subject any accused person who is suspected to be of unsound mind to medical observation and remand such person once or oftener for such reasonable time as shall be specified in the order of remand either to the custody of the superintendent of a prison to be by him detained in prison or of the officer in charge of such house or place of observation as may be appointed by the Minister under the provisions of section 3 of the Mental Diseases Ordinance, to be by such officer detained in such house or place of observation. And every person so remanded shall be subject to the inspection of the medical officer of the prison or of the house or place of observation in which he may be detained.

CHAPTER XXXII
PROCEEDINGS IN CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE
Procedure in cases mentioned in section 135(1), paragraphs (c) and (d).

387.

(1) When any civil or criminal court other than a Magistrate’s Court is of opinion that there is ground for inquiring into any offence referred to in section 135 (1), paragraphs (c) and (d), committed before it or brought under its notice in the course of a judicial proceeding, such court may send the case for inquiry or trial to the nearest Magistrate’s Court and may send the accused in custody or take sufficient security for his appearance before such Magistrate’s Court and may bind over any person to appear and give evidence on such inquiry or trial, and such Magistrate’s Court shall thereupon proceed according to law.

(2) Where the officer presiding in such court at the time the offence was committed before it or brought under its notice is also a Magistrate of the nearest Magistrate’s Court he shall not try the accused, but shall either himself hold an inquiry under Chapter XV with a view to a committal for trial to the High Court or remand the accused or release him on bail to be tried by another Magistrate of such Magistrate’s Court.

(3) In the case of a Magistrate’s Court the Magistrate presiding in such court at the time the offence was committed before it or brought under its notice may either himself hold an inquiry under Chapter XV with a view to committal for trial by the High Court or may remand the accused or release him on bail to be tried by another Magistrate of such Magistrate’s Court.

Procedure in certain, case of contempt.

388.

(1) Whenever any such offence as is described in sections 173. 176, 177, 178 or 223 of the Penal Code is committed in view or presence of any court criminal or civil, other than the Supreme Court or Court of Appeal or the High Court such 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 cognizance of the offence and sentence the offender; if a District Court, to a fine not exceeding one thousand five hundred rupees and in default of payment to simple imprisonment which may extend to three months unless such fine be sooner paid ; if a Magistrate’s Court, to- a fine not exceeding five hundred rupees and in default of payment to simple imprisonment which may extend to two months unless such fine be sooner paid.

(2) If the offence is under section 223 of the Penal Code the record must 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.

(3) 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 an apology being made to its satisfaction.

Procedure where court considers case should not be dealt with under section 388.

389.

(1) If any Magistrate’s Court or District Court in any case considers that a person accused of any of the offences referred to in section 388 and committed in its view or presence should be punished otherwise than there provided or such court is for any other reason of opinion that the case should not be disposed of under that section, such court after recording the facts constituting the offence and the statement of the accused as hereinbefore provided may forward the case to the Attorney-General, and thereafter abide the Attorney-General’s instructions.

(2) The Attorney-General shall on receipt of such case, if satisfied of the facts either prosecute the offender in the appropriate Magistrate’s Court or direct the Magistrate to hold an inquiry under Chapter XV with a view to committal of the offender for trial by the High Court or directly indict the offender for trial by the High Court:

Provided that the trial in the High Court shall be without a jury ;

Provided further that a Magistrate in whose view or presence the offence was committed shall not himself summarily try the case.

Imprisonment or committal of person refusing to answer or produce documents.

390.

(1) If any person before court other than the Supreme Court or Court of Appeal refuses to answer such questions as are put to him or to produce any document 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 order him to be detained as a prisoner for any term not exceeding seven days unless in the meantime such person consents to be examined and to answer or to produce the document. In the event of his persisting in his refusal after the, expiration of the said term he may be dealt with according to the provisions of section 388 or 389.

(2) In every case in which an order is made under this section the court shall record the facts of the refusal with the statement if any made by the person so refusing and shall send a copy of such record together with a copy of the order made by it to the Court of Appeal so that the Court of Appeal if it thinks fit may exercise its power of revision.

District Judges and Magistrates not to try offences referred to in section 135(1), paragraphs(c) and (d), when committed before themselves.

391. Except as provided in this Chapter any District Judge 01. Magistrate shall not try any person for any offence referred to in section 135 (1), paragraphs (c) and (d), when such offence is committed before himself or in contempt of his authority or is brought under his notice as such District Judge or Magistrate in the course of a judicial proceeding.

High Court may take congnizance of certain offences.

392. Anything to the contrary in this Code notwithstanding, the High Court may take cognizance of and try any such offence as is described in sections 173, 176, 177 or 178 of the Penal Code or any such offence as is referred to in section 135 (1), paragraphs (c) and (d), of this Code –

(i) where the offence has been committed in its view or presence or brought under its notice in the course of a judicial proceeding before it without indictment by the Attorney-General, and

(ii) otherwise upon indictment by the Attorney-General.

PART IX
SUPPLEMENTARY PROVISIONS
CHAPTER XXXIII
OF PROCEEDINGS BY THE ATTORNEY-GENERAL
Powers of Attorney-General.

393.

(1) It shall be lawful for the Powers of Attorney-General to exhibit information, Attorney-present indictments and to institute, undertake, or carry on criminal proceedings in the following cases, that is to say –

(a) in the case of any offence where a preliminary inquiry under Chapter XV by a Magistrate is imperative or may be directed to be held by the Attorney-General;

(b) in any case where the offence is not bailable;

(c) in any case referred to him by a State Department in which he considers that criminal proceedings should be instituted;

(d) in any case other than one filed under section 136 (1) (a) of this Code which appears to him to be of importance or difficulty or which for any other reason requires his intervention;

(e) in any case where an indictment is presented or information exhibited in the High Court by him.

(2) The Attorney-General shall give advice, whether on application or on his own initiative to State Departments, public officers, officers of the police and officers in corporations in any criminal matter of importance or difficulty.

(3) The Attorney-General shall be entitled to summon any officer of the State or of a corporation or of the police to attend his office with any books or documents and there interview him for the purpose of –

(a) initiating or prosecuting any criminal proceeding, or

(b) giving advice in any criminal matter of importance or difficulty.

The officer concerned shall comply with such summons and attend at the office of the Attorney-General with such books and documents as he may have been summoned to bring.

(4) The Attorney-General may nominate State Counsel or employ any attorney-at- law to conduct any prosecution in any court and determine the fees to be paid to such attorney-at-law.

(5) The Superintendent or Assistant Superintendent of Police in charge of any division shall report to the Attorney- General every offence committed within his area where –

(a) preliminary investigation under Chapter XV is imperative ; or

(b) for the institution of proceedings the consent or sanction of the Attorney-General is required ; or

(c) a request for such report has been made by the Attorney-General; or

(d) such Superintendent or Assistant Superintendent considers the advice or assistance of the Attorney-General necessary or desirable ; or

(e) the Magistrate so directs; or

(f) the offence was cognizable and the prosecution was withdrawn or cannot be proceeded with.

(6) When reporting in terms of subsection (5) the Superintendent or Assistant Superintendent of Police as the case may be shall supply to the Attorney-General –

(a) a full statement of the circumstances;

(b) copies of the statements of all witnesses,

(c) such other information, documents or productions as may be relevant or as may be called for by the Attorney-General; and

(d) where an inquest has been held, a copy of the inquest proceedings.


[12,52 of 1980.]

(7) Notwithstanding any other provisions contained in this Act, it shall be lawful for the Attorney-General, having regard to the nature of the offence or any other circumstances, in respect of any summary offence –

(a) to forward an indictment directly to the High Court, or

(b) to direct the Magistrate to hold a preliminary inquiry in accordance with the procedure set out in Chapter XV in respect of any offence specified by him where he is of opinion that the evidence recorded at a preliminary inquiry will be necessary for preparing an indictment;

and thereupon such offence shall not be triable by a Magistrate’s Court.

(8) The Minister may make regulations containing all such incidental or supplementary provisions as may be necessary to enable the Attorney-General to exercise and perform his powers and duties under this section.

What persons are deemed to have been brought before the court.


[13,52 of 1980.]

394. All persons appearing before the High Court against whom an indictment is preferred shall unless the contrary is shown be deemed to have been brought before the court in due course of law and (subject to the provisions herein contained) shall be tried upon the indictment so preferred.

Power of Attorney-General to call for original record and productions.

395.

(1) It shall be lawful for the Attorney-General after the receipt by him of the certified copy of the record of an inquiry forwarded under section 159, if he is of opinion that such action is necessary for the proper consideration of the case by him, to call for the original record of the inquiry (together with any documents produced in evidence) from the court to which such record has been forwarded, and for any productions other than documentary evidence, from the Registrar.

(2) It shall be the duty of the Registrar of the High Court to forward to the Attorney-General any record or production called for under subsection (1).

Power of Attorney-General to quash commitment and issue instructions to Magistrate.

396. If, after the receipt by him of the certified copy of the record of an inquiry forwarded under section 159, the Attorney- General is of opinion that there is not sufficient evidence to warrant a commitment for trial, or if for any reason he is of opinion that the accused should be discharged from the matter of the complaint, information or charge, and if the accused is in custody from further detention, he may by order in writing quash the commitment made by the Magistrate and may direct the Registrar of the High Court to return the record of the inquiry to the Magistrate’s Court. The Attorney-General shall in every such case issue to the Magistrate such directions as to the disposal of the complaint, information or charge against the accused as to him may seem expedient, and it shall be the duty of the Magistrate to comply with the directions so issued.

Attorney-General may order further evidence to be taken.

397.

(1) If the Attorney-General is of opinion that a criminal offence is disclosed by the proceedings against the accused but that the evidence already taken by reason of being in any particular or respect defective is not sufficient to afford a foundation for a full and proper trial, then he may make in writing an order requiring the Magistrate’s Court to take such further evidence as may be specified or indicated in the order either in the way of examining anew witnesses who have already given their testimony or otherwise to continue the inquiry, and upon making such order the Attorney-General shall direct that the record of the inquiry be returned to the Magistrate’s Court, and thereupon the Registrar of the High Court shall so return the record and the Magistrate shall comply with the order of the Attorney-General.

(2) The Attorney-General may if he thinks it necessary, direct the Magistrate to record the evidence of any expert witness or police officer and the Magistrate shall then comply with such directions.

(3) The supplemental inquiry may be conducted in the Magistrate’s Court by a Magistrate thereof other than the Magistrate who conducted me original inquiry.

Judge of the High Court and Magistrate to transmit proceedings to Attorney-General when required.

398.

(1) A Judge of the High Court and a Magistrate shall whenever required in writing by the Attorney-General forthwith transmit to the Attorney-General the proceedings in any criminal case in which an inquiry or trial has been or is being held before him and thereupon such inquiry or trial shall be suspended in the same and the like manner as upon adjournment thereof :

Provided that the Attorney-General shall return such record to such court not later than two months after it is received by him.

(2) It shall be competent for the Attorney-General upon the proceedings in any case being transmitted to him by a Magistrate under the provisions of this section to give instructions with regard to the inquiry to which such proceedings relate as he may consider requisite ; and thereupon it shall be the duty of the Magistrate to carry into effect subject to the provisions of this Code the instructions of the Attorney-General and to conduct and conclude such inquiry in accordance with the terms of such instructions.

Attorney-General may order committal or fresh inquiry when of opinion that an accused should not have been discharged.

399. Whenever a Magistrate shall have discharged an accused under the provisions of section 153 and the Attorney-General shall be of opinion that such accused should not have been discharged the Attorney- General may direct him to commit such accused to the High Court or order a Magistrate of such court to re-open the inquiry and may give such instructions with regard thereto as to him shall appear requisite ; and thereupon it shall be the duty of such Magistrate to carry into effect such instructions.

Who may conduct prosecution before Magistrate.

400.

(1) A person other than the Attorney-General, State Counsel, or a pleader generally or specially authorized by the Attorney-General shall not conduct the prosecution in any case into which the Magistrate of a Magistrate’s Court may be inquiring,

(2) In the absence of the Attorney-General, the Solicitor-General, State Counsel, and a pleader generally or specially authorized by the Attorney-General the Magistrate shall conduct the prosecution, but anything in this section shall not preclude the Magistrate from availing himself, if he considers it so desirable, of the assistance of any pleader or public officer in the conduct of any inquiry.

Scope of functions of Solicitor-General and State Counsel.

401. The Solicitor-General and State Counsel may by the direction either general or special of the Attorney-General exercise all or any of the powers, except the powers of entering a noble prosecution and of pardoning an accomplice or of sanctioning an appeal from an acquittal, conferred and perform all or any of the duties imposed upon the Attorney-General by this Code.

CHAPTER XXXIV
OF BAIL
Bail to be taken in case of bailable offence.

402. When any person other than a person accused of a non-bailable offence appears or is brought before a court and is prepared at any time at any stage of the’ proceedings before such court to give bail such person shall be released on bail:

Provided that the court if 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.

When bail may be taken m case of non-bailable offence.

403.

(1) A Magistrate or a Judge of the High Court, at any stage of any inquiry or taken m case trial, as the case may be, may in his discretion release on bail any person accused of any non-bailable offence, but he shall not except with the sanction of the Attorney-General and subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978*, for so long as that Law is in force be so released if it is alleged that he has committed or been concerned in committing or is suspected to have committed or to have been concerned in committing an offence punishable under sections 114, 191 and 296 of the Penal Code.

(2) If it appears to the court at any stage of the inquiry or trial as the case may be that there are not reasonable grounds for believing that a person accused of a non-bailable offence has committed such offence, but that there are sufficient grounds for further inquiry or trial the accused shall pending such inquiry be released on his executing a recognizance in such sum and with or without a surety or sureties as such court may direct conditioned for his appearance as hereinafter provided.

(3) Where a Magistrate has committed any person for trial for any non-bailable offence under any of the sections of the Penal Code referred to in subsection (1), the Magistrate shall not release such person on bail without the sanction of the Attorney-General. Where a person is committed by the Magistrate for trial for any other non-bailable offence under the Penal Code, such Magistrate may in his discretion release such person on bail.

Bail not to be excessive and the Court of Appeal may admit to bail in any case.

404. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive; and notwithstanding anything to the contrary in this Code or any other law the Court of Appeal may in any case direct that any person in custody be admitted to bail or that the bail fixed by the High Court or Magistrate be reduced or increased, or that any person enlarged on bail by a Judge of the High Court or Magistrate to be remanded to custody,

Bond of accused arid sureties.

405.

(1) Before any person is released on bail or released on his own bond a bond for such sum of money as the 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 sureties, conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed.

(2) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court or other court to answer the charge and to continue so to appear on every date to which the trial may be postponed or adjourned.

Discharge from custody.

406.

(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 prison the court admitting him to bail shall issue an order of release to the officer in charge of the prison and such officer on receipt of the order shall release him.

(2) Anything in this section, section 402, or section 403 shall not 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.

Power to order sufficient bail when that first taken is insufficient.

407. If through mistake, fraud, or otherwise, insufficient sureties have been accepted or if they afterwards 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 prison.

Discharge of sureties.

408.

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

(2) On such application being