CRIMINAL PROCEDURE CODE



CRIMINAL PROCEDURE CODE
AN ORDINANCE TO AMEND AND CONSOLIDATE THE PROCEDURE OF THE COURTS OF CRIMINAL JUDICATURE.
Ordinance Nos,
15 of 1898
5 of 1903
2 of 1906
24 of 1906
37 of 1908
1 of 1910
18 of 1911
8 of 1913
18 of 1915
11 of 1916
16 of 1918
31 of 1919
40 of 1921
6 of 1924
19 of 1930
13 of 1938
17 of 1938
47 of 1938
57 of 1938
67 of 1938
49 of 1939
55 of 1939
59 of 1939
63 of 1939
64 of 1939
3 of 1940
10 of 1940
20 of 1941
6 of 1944
41 of 1944
42 of 1944
12 of 1945
23 of 1945
41 of 1945
37 of 1946
57 of 1947
Act Nos,
10 of 1948
31 of 1949
11 of 1954
[1st March
, 1899
]
PART I
CHAPTER I

PRELIMINARY

Short title.

1. This Ordinance, hereinafter referred to as Code, may be cited as the Criminal Procedure Code

Interpretation.

2. In this Code the following words and expressions have the following meanings, unless a different intention appears from the subject or context: –

” Attorney-General “.

” Attorney-General ” means the Attorney-General of Ceylon, 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 hereto annexed, and ” section ” means a section of this Code;

” Chief Justice “.

” Chief Justice ” means the Chief Justice of the Island of Ceylon 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;

” Crown Counsel “.

” Crown Counsel ” includes Senior Crown Counsel;

” Deputy Solicitor-General “,

” Deputy Solicitor-General ” includes an acting Deputy Solicitor-General;

” Discharge “.

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

” District Courts “. ” Magistrates’ Courts “.

” District Courts ” and ” Magistrates’ Courts ” mean District Courts and Magistrates’ Courts respectively as defined by the Courts Ordinance;

” District Judge “.

” District Judge ” means the Judge of a District Court and includes an acting Judge;

” Fine “.

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

” Fiscal “.


[ 2, 67 of 1938.]

” Fiscal ” includes any person authorized either generally or specially by the Fiscal 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 Assistant Government Agent of such district;

” Government Analyst “.

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

” Indictable offence “.

” indictable offence ” means an offence triable only by the Supreme Court or a District Court;

” Inquirer “.

” inquirer ” means a person appointed by the Minister of Justice l under Chapter XII;

” Inquiry “.

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

” Inspector-General of Police “.

” Inspector-General of Police ” includes a Deputy Inspector-General of Police;

” Judge “.

” Judge ” means a Judge of the Supreme Court and includes an acting Judge;

” 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 Municipal Magistrates;

” Non-cognizable offence “.

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

” Offence”.

” offence ” means any act or omission made punish-able by any law for the time being in force in Ceylon;

” Officer in charge of a police station “.

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

” Peace officer “.

” peace officer ” includes police officers and headmen 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 company or association of persons, whether incorporated or not;

” Pleader “.

” pleader ” used with reference to any proceeding in any court means-

(a) an advocate;

(b) any person authorized under any law for the time being to practise in such court;

” Police officer “.

” police officer ” means a member of an established police force and includes the Inspector-General, Superintendents, inspectors, sergeants, and constables of police;

” Police station “.

police station” means any post declared generally or specially by the Government to be a police station;

” Prescribed “.

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

” Puisne Justice “,

“Puisne Justice ” includes an acting Puisne Justice;

” Registrar “.

” Registrar ” means the Registrar of the Supreme Court and includes Deputy Registrar and the persons acting for the time being as Registrar or Deputy Registrar;

” Solicitor-General “.

” Solicitor-General ” means the Solicitor-General of Ceylon, and includes an acting Solicitor-General and a Deputy Solicitor-General;

” Summary offence “.

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

” Supreme -Court “.

” Supreme Court ” and ” court ” when applicable to the Supreme Court mean the Supreme Court of the Island of Ceylon for the time being or the Chief Justice or any Puisne Justice thereof;

” 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 Penal Code.

(2) All words and expressions used herein and defined in the Penal Code and not herein before 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.

Trial of offences under Penal Code and other laws.

4. All offences under the Penal Code shall be inquired into and tried according to the provisions hereinafter contained; and all offences under any other law shall be inquired into and tried according to the same provisions, subject however to any enactment for the time being in force regulating the manner or place of inquiring into or trying such offences.

Saving of powers of Supreme Court and Attorney-General.

5. Nothing in this Code shall be construed as derogating from the powers or jurisdiction of the Supreme Court or of the Judges thereof or of the Attorney-General.

Law of England when applicable.

6. As regards matters of Criminal Procedure for which no special provision may have been made by this Code or by any other law for the time being in force in Ceylon, the law relating to Criminal Procedure for the time being in force in England shall be applied, so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.

PART II
CHAPTER II

POWERS OF CRIMINAL COURTS

Inquiries may be held in private.

7. Notwithstanding anything contained in section 85 of the Courts Ordinance, a Magistrate inquiring into an offence may if he thinks fit order at any stage of the inquiry that the public generally or any particular person shall not have access to or be or remain in the court:

Provided that in no case shall the pleader of the accused be excluded except in case of gross misconduct.

Power of Supreme Court to inspect inferior courts.

8. In addition to all other powers vested in the Supreme Court and the Judges thereof, such court in the exercise of its power of superintendence may inspect all inferior courts and give directions as to the keeping of the records thereof.

Criminal summary jurisdiction of Magistrates’ Courts.

9. Every Magistrate’s Court shall have as heretofore and under and subject to the provisions of this Code full 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 law in force in Ceylon are made cognizable by a Magistrate’s Court;

Jurisdiction to inquire into the commission of offences.

And also jurisdiction to inquire into, subject to and as provided for by this Code, all offences committed or alleged to have been committed wholly or in part within the local jurisdiction of such courts or into which jurisdiction is by this Code given to such courts to inquire, and to summon and examine all witnesses touching such offences, and to summon and apprehend all criminals and offenders and deal with them according to law;

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

And 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;

To inquire into cases of sudden or accidental death.

And also jurisdiction, under and subject to this Code, 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:

Saving exclusive jurisdiction of Rural Courts.

Provided however that nothing herein contained shall be held to give a Magistrate’s Court summary jurisdiction to hear or determine any suit or prosecution for or in respect of any offence over which any Rural Court has exclusive jurisdiction under any special law.

Offences under Penal Code.

10. Subject to the other provisions of this Code any offence under the Penal Code may be tried by the Supreme Court or by any other court by which such offence is shown in the eighth column of the First Schedule to be triable.

Offences under other laws.

11. Any offence under any law other than the Penal Code shall when any court is mentioned in that behalf in such law be tried by such court. When no court is mentioned it may be tried by the Supreme Court or by any other court mentioned in the First Schedule:

Provided that-

(a) no District Court shall try any such offence which is punishable with imprisonment for a term which may exceed two years or with a fine which may exceed one thousand rupees; and

(b) except as hereinafter provided no Magistrates Court shall try any such offence which punishable with imprisonment for a term which may exceed six months or with a fine which may exceed one hundred rupees.

District Courts not to have original criminal jurisdiction.

12. No District Court shall take cognizance of any offence unless the accused person has been committed for trial by a Magistrate’s Court duly empowered in that behalf or unless the case has been transferred to it from some other court for trial by order of the Supreme Court.

Sentence which Supreme Court may pass.

13. The Supreme Court may pass any sentence authorized by law.

Sentences which District Courts may pass.

14. A District Court may pass any of the following sentences: –

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

(b) fine not exceeding one thousand rupees;

(c) whipping.;

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

Sentences which a Magistrate’s Court may pass.

15.

(1) A Magistrate’s Court may, subject to the provisions of section 152 (3), pass any of the following sentences: –

(a) imprisonment of either description for a term not exceeding six months;

(b) fine not exceeding one hundred rupees;

(c) whipping, if the offender is under sixteen years of age;

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

(2) Nothing in this section shall be deemed to repeal the provisions of any enactment now in force whereby special powers of punishment are given to Magistrates’ Courts.

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


[ 2, 47 of 1938.]

15A. Notwithstanding anything in this Code, the Penal Code, or any other written law to the contrary, no court shall sentence any person to imprisonment, whether in default of payment of a fine or not, for a term which is less than seven days.

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


[ 2, 47 of 1938.]

[ [ 2, 59 of 1939.]

15B. 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 District or Magistrates’ Courts to sentence to imprisonment in default of payment of fine.

16.

(1) A District Court or a Magistrate’s Court may award 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 awarded is not in excess of the court’s powers under this Code.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the court under sections 14 or 15.

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

17.

(1) When a person is convicted at one trial of any two or more distinct offences the court may 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, but it shall not be necessary for a Magistrate’s Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of one single offence, to send the offender for trial before a superior court:

Maximum term of punishment.

Provided that if the case is tried by a District Court or 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 passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.

Committing Magistrate not to try offenders in his capacity of District Judge without offenders’ consent.

18. No District Judge shall, except with the express consent of the accused, try any case which he has committed for trial as Magistrate.

PART III
CHAPTER III

GENERAL PROVISIONS

OF AID AND INFORMATION TO THE MAGISTRATES AND POLICE AND PERSONS MAKING ARRESTS

Public when to assist Magistrates and police.

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 person other than peace officer 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 of certain offences.

21. Every person aware-

(a) of the commission of or the intention 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, 296, 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 the headman of the nearest village of such commission or intention or of such sudden unnatural or violent death or death uncle 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 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 under suspicious circumstances;

(c) the finding of the dead body of any person without its 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.

Resisting endeavour to arrest.

(2) If such person forcibly resist the endeavour to arrest him or attempt to evade the arrest, the person making the arrest may use all means necessary to effect the arrest.

(3) Nothing in this section gives 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 thereto and afford all reasonable facilities for a search therein.

Procedure where ingress not obtainable.

25. If ingress to such place cannot be obtained under the preceding section it shall be lawful in any case for a person acting under a warrant, and 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 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 persons 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 they may, if the thing sought be in its nature capable of being concealed on the person, be searched for it by or in presence of a Magistrate or inquirer or a peace officer not under the rank of Inspector, Korala, Muhandiram, or Udaiyar.

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 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 evidences 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 which he has about his person and shall deliver all weapons 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-

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

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

(d) any person who has been proclaimed as an offender;

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

(g) any person reasonably suspected of being a deserter from Her Majesty’s Navy, Army, or Air Force;

(h) any person 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;

(44 and 45 Vict. c. 69.)

(i) any person 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 Ceylon, which if committed in Ceylon would have been punishable as an offence and for which he is under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise liable to be apprehended or detained in custody in Ceylon.

(2) Nothing in this section shall be held to interfere with or modify the operation of any enactment empowering a peace officer to arrest without a warrant.

Powers 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 his name or residence may be ascertained, and he 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 arc 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 non-cognizable offence and a peace officer has reason to believe that such person has no permanent residence in Ceylon and that he is about to leave Ceylon, 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 jurisdictions.

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 Ceylon.

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 Ceylon, 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. No peace officer shall detain in custody 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. No person who has been arrested by a peace officer shall be discharged except on his own bond or on bail or under the special order in writing of a Magistrate.

Offence committed in Magistrate’s presence.

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 arrests under section 42.

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

CHAPTER V

OF PROCESSES TO COMPEL APPEARANCE

A.-SUMMONS

Requisites of summons.

44.

(1) Every summons issued by a court under this Code shall be in writing in duplicate and signed in the case of the Supreme Court by the Registrar and in the case of a District Court by the Secretary and in the case of a Magistrate’s Court by a Magistrate or such other officer as the Minister of Justice [1] may from time to time 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 English one of such duplicates shall if he is a Sinhalese be in Sinhalese, and if he is a Tamil, Moorman, or Malay one of such duplicates shall be in Tamil.

Summons how served.

45.

(1) The summons shall ordinarily be served by a Fiscal’s officer or a peace officer, but the court issuing the same may if it see fit direct it to be served by any other person.

(2) It 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 Sinhalese, Tamil, Moorman, or Malay shall be the duplicate in the vernacular.

(3) In the case of a company or association of persons whether incorporated or not the summons may be served on the secretary or other like officer of the same.

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 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 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 Government servant.

48. Where the person summoned is in the active service of the Government the court issuing the summons shall ordinarily send it in duplicate to the head of the department or office in which such person is employed; and such head shall thereupon cause one of the duplicates to be served in manner provided by section 45 and shall return the other to the court with an endorsement of service.

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 in the case mentioned in section 48 the endorsement therein mentioned, 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 of Justice 1 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) of this section.

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 in the case of the Supreme Court by the Chief Justice or a Puisne Justice, in the case of a District Court by a Judge thereof, and in the case of a Magistrate’s Court by a Magistrate thereof, 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 nonbailable offence and shall in the case of a bailable offence direct by endorsement on the warrant that if such person execute 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 shall ordinarily be directed to the Fiscal of the province wherein the court issuing such warrant is sitting and may be executed by all Fiscals, Deputy Fiscals, fiscals’ officers, and peace officers within the limits of their several and respective jurisdictions or in any part of Ceylon 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 shall show him the warrant or a copy thereof signed by the person issuing the same.

Person arrested to be brought before court without delay.

54. The person executing a warrant of arrest shall (subject to the provisions of 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 Ceylon.

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 the same such court shall ordinarily forward the same 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 Ceylon:

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 province of such Fiscal he shall endorse it to the Fiscal of the province within which 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 carried before such last-mentioned Magistrate’s Court.

(2) Such latter Magistrate’s Court 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) Nothing in this section shall be deemed to prevent a peace officer from taking security under section 51.

C. PROCLAMATION AND ATTACHMENT

Proclamation for person absconding.

59.

(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) it or a translation in Sinhalese or Tamil shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it and a translation in Sinhalese and Tamil 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) a copy and a translation in Sinhalese and Tamil thereof 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 property of person absconding.

60.

(1) The court may after issuing a proclamation under the last preceding section order the attachment of 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 without such jurisdiction when endorsed by a District Judge or 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 any one 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 any one 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 of Justice,1 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.

61. If within one year from the. date of the attachment any person whose property is or has been at the disposal of the Minister of Justice 1 under the last preceding section 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, such 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 there out 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 addition to summons.

62.

(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 or assessor 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) Provided the court may make it a condition of the issue of a warrant under this section 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.

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

Summons to run in any part of Ceylon.

64.

(1) All summonses to appear may be served in any part of Ceylon, provided that no such summonses shall 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) No such summons shall 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.

Arrest on breach of bond for appearance.

65. 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.

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 purposes 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) Nothing in this section shall be deemed to affect the provisions of sections 123 and 130 of the Evidence Ordinance, or to apply to any book, letter, post card, telegram, or other document in the custody of the Postal or Telecommunication authorities.

Procedure as to letters, telegrams, &c.

67.

(1) If any such book, letter, post card, telegram, or other document as in subsection (3) of the last preceding section is mentioned is in the opinion of the Supreme Court wanted for the purpose of any proceeding under this Code the Supreme Court may require the Postal or Telecommunication authorities as the case may be to deliver such document to such person as such court directs.

(2) If any such document is in the opinion of the Attorney-General wanted for any such purpose he may require the Postal or Telecommunication authorities as the case may be to cause search to be made for and to detain such document pending the orders of the Supreme Court.

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 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 proceeding under this Code will be served by a general search or inspection, it may 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 hereinafter contained.

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

(3) Nothing herein contained shall authorize any court other than the Supreme Court to grant a warrant to search for a document in the custody of the Postal or Telecommunication authorities.

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 carry 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 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 herein- after 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 persons wrongfully confined.

72. If any Magistrate’s Court has reason to 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 con- fined 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 PROVISIONS 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 the last preceding section, signed by the person executing the warrant, shall be delivered to such occupant or person at his request.

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

Security for keeping the peace on conviction.

80.

(1) Whenever any person is 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 six months if the sentence or order be by a Magistrate’s Court or two years if the sentence or order be by a District Court.

(2) If the conviction is set aside on 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 six months as the Magistrate thinks fit to fix.

Security for good 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 six months as the Magistrate 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 six months as the Magistrate thinks fit to fix.

Summons or warrant in case of person no so present.

84. When a Magistrate acting under any one of the last three preceding sections 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 him 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 the 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 the last preceding section shall contain a brief statement of the substance of the information on which such summons or warrant is issued.

Power to dispense with personal attendance.

86. The Magistrate may if he sees sufficient cause dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace and may permit him to appear by a pleader.

Inquiry as to the truth of information.

87.

(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 made 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.

Order to give security.

88. 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.


[ 3, 47 of 1938.]

89. 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 purposes of the inquiry shall release him, or if such person is not in custody shall discharge him.

C.-PROVISIONS APPLICABLE TO ALL ORDERS TO FURNISH SECURITY

Imposition of term of imprisonment in default of security.


[ 3, 47 of 1938.]

89A. At the time of making an order requiring security under 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 Supreme Court, or one year where the court is a District Court or six months where the court is a Magistrate’s Court.

Allowance of time to give security.


[ 3, 47 of 1938.]

89B.

(1) At the time of making an order requiring security under this Chapter, the court may, if it thinks fit so to do, allow time not exceeding one month for furnishing the security;

Provided that a Magistrate’s Court shall allow time in every such case unless for any special reason (to be recorded by the court) it is of opinion that time should not be allowed.

(2) The provisions of this section 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.


[ 3, 47 of 1938.]

90. The period for which security is required by an order made under this Chapter shall commence-

(a) where time has not been allowed under section 89b, 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. 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.

92. A court may refuse to accept any surety offered under this Chapter 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.


[ 3, 47 of 1938.]

93. If any person ordered to give security under 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 89a, 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.

94. 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.

95. 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.

96.

(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 shall not exercise this power except in cases where the imprisonment is under its own order.

Magistrate to report to superior court and such court may order release.

97. Whenever a Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter as ordered by the Supreme Court or a District Court may be released without the hazard mentioned in the last preceding section, such Magistrate shall make an immediate report of the case for the orders of the Supreme Court or District Court as the case may be, and such court may if it thinks fit order such person to be discharged.

Discharge of sureties.

98.

(1) Any surety for the peaceable conduct or good behaviour of another person may at any time apply to a Magistrate to cancel any bond executed under this Chapter within the local limits of his Jurisdiction.

(2) On such application being made the Magistrate shall issue his summons or warrant as he thinks fit requiring the person for whom such surety is bound to appear or to be brought before him.

(3) When such person appears or is brought before the Magistrate such Magistrate shall cancel the bond and shall order such person to give for the unexpired portion of the term 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.

CHAPTER VIII

UNLAWFUL ASSEMBLIES

Assembly to disperse on command of Magistrate or peace officer.

99. Any Magistrate and any peace officer not below the rank of Inspector, Korala, Muhandiram, or Udaiyar 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.


[ 12, 31 of 1949.]

100. 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, any Magistrate or any such peace officer as in the last preceding section mentioned may proceed to disperse such assembly by force and may require the assistance of any male person (not being a member of any naval, military or air force, whether of Ceylon 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.

101. If any such assembly cannot be otherwise dispersed and if it is necessary for the public security that it should be dispersed, the Government Agent of the district or any Magistrate having jurisdiction who is present or the Inspector-General of Police may cause it to be dispersed by military force.

Duty of officer commanding troops required by Magistrate to disperse assembly.


[ 12, 31 of 1949.]

102.

(1) When the Government Agent, Magistrate, or the Inspector-General of Police determines to disperse any such assembly by military force he may require any commissioned or non-commissioned officer in command of any soldiers of the Ceylon Army to disperse such assembly by military force and to arrest and confine such persons forming part of it as the Government Agent, Magistrate, or Inspector-General of Police may direct or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.

(2) Every such officer shall obey such requisition in such manner as he thinks fit, but in so doing he shad 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.


[ 12, 31 of 1949.]

103. When the public security is manifestly endangered by any such assembly and when the Government Agent. Magistrate, or the Inspector-General of Police cannot be communicated with, any commissioned officer of the Ceylon Army may disperse such assembly by military force and may arrest and 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 Government Agent, Magistrate, or the Inspector-General of Police he shall do so and shall thenceforward obey the instructions of the Government Agent, Magistrate, or Inspector-General of Police as to whether he shall or shall not continue such action.

Protection against prosecution for acts done under this Chapter.


[ 12, 31 of 1949.]

104. No prosecution against any Government Agent, Magistrate, or the Inspector-General of Police or any military officer, peace officer, or soldier of the Ceylon Army for any act purporting to be done under this Chapter shall be instituted in any criminal court except with the sanction of the Governor-General; 3 and

(a) no Government Agent, Magistrate, or peace officer acting under this Chapter in good faith;

(b) no officer acting under section 103 in good faith;

(c) no person doing any act in good faith in compliance with a requisition under section 100 or section 102; and


[ 12, 31 of 1949.]

(d) no inferior officer or soldier of the Ceylon Army doing any act in obedience to any order which under military law he was bound to obey,

shall be deemed to have thereby committed an offence.

CHAPTER IX

PUBLIC NUISANCES

Conditional order for removal of nuisance.

105.

(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 may be; or

(ix) appear before himself or some other Magistrate of his court at a time and place to be fixed by the order and move to have the order set aside or modified in manner hereinafter provided.

(2) No order duly made under this section shall be called in question in any civil court.

(3) For the purpose of this section a ” public place” includes also property belonging to the Crown 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.

106.

(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 it shall be notified by proclamation published in the Gazette and a copy thereof shall be posted up at such place or places as may be fittest for conveying the information to such person.

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

107. The person against whom such order is made shall within the time specified therein-

(a) perform the act directed thereby; or

(b) appear in accordance with such order and show cause against the same.

Consequence of failing to do so.

108. If such person does not perform such act or appear and show cause as required by the last preceding section 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 it shall be liable to a fine of such amount not exceeding one hundred rupees as the Magistrate’s Court thinks fit.

Procedure in case of appearance.

109.

(1) If such person appears and shows cause against the order the Magistrate’s Court shall take evidence in the matter.

(2) If such court 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 such court is not so satisfied the order shall be made absolute.

Procedure on order being made absolute.

110. When an order has been made absolute under either of the last two preceding sections the Magistrate’s Court 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 section 108.

Consequence of disobedience to order.

111.

(1) If such act is not performed within the time specified in the notice issued under the last preceding section the Magistrate’s Court 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 its 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 such 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) No suit shall lie in respect of anything done in good faith under this section.

Injunction pending inquiry.

112.

(1) If the Magistrate’s Court making an order under section 105 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public it 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 such court may use or cause to be used such means as it thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

Magistrate may prohibit continuance or repetition of public nuisances.

113. 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.

CHAPTER X

TEMPORARY ORDERS IN URGENT CASES OF NUISANCE

Power to issue absolute order at once in urgent cases of nuisance.

114.

(1) In cases where in the opinion of a Magistrate immediate prevention or speedy remedy is desirable such Magistrate may by a written order stating the material facts of the case and served in manner provided by section 106 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 such 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 this section 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 person against whom the order is directed be made ex parte.

(3) An order under this section 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 published as provided by section 106 (2), except that it shall not be necessary to notify it by proclamation in the Gazette.

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

(5) No order under this section shall 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 Minister1 by notification in the Gazette otherwise directs.

CHAPTER XI

PREVENTIVE ACTION OF PEACE OFFICERS

Peace officers to prevent cognizable offences.

115. 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 design to commit such offences.

116. Every peace officer receiving information of a design 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 orders or warrant to prevent such offences.

117. A peace officer knowing of a design to commit any cognizable offence may arrest without orders from a Magistrate and without a warrant the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

Prevention of injury to public-property.

118. 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 or injury of any public landmark or buoy or other mark used for navigation.

Assistance to inspectors of weights and measures.


[ 60, 37 of 1946.]

119. 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 XII

INFORMATION TO POLICE OFFICERS AND INQUIRERS AND THEIR POWERS TO INVESTIGATE

Appointment of inquirers.

120. The Minister of Justice l 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 in cognizable cases.

121.

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station or to an inquirer, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and a copy thereof shall be entered in a book, hereinafter referred to as ” the Information Book “, to be kept by such officer or inquirer in such form as the Minister [1] may prescribe in this behalf.

Procedure where cognizable offence suspected.

(2) If from information received or otherwise an officer in charge of a police station or inquirer has reason to suspect the commission of a cognizable offence, he shall forthwith send a report of the same to the Magistrate’s Court having jurisdiction in respect of such offence, or. in the case of an officer in charge of a police station, to his own immediate superior, and shall 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 discovery and arrest of the offender:

Provided 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 take such measures as may be necessary for the discovery and arrest of the offender, or if it appear to him 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.

(3) 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 or inquirer.

122.

(1) Any police officer or inquirer making an inquiry 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 no oath or affirmation shall be administered to any such person, nor shall the statement be signed by such person. 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.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer 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 not to be admitted in evidence.

(3) No statement made by any person to a police officer or an inquirer in the course of any investigation under this Chapter shall be used otherwise than to prove that a witness made a different statement at a different time, or to refresh the memory of the person recording it. But 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. 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 who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer or inquirer, the provisions of the Evidence Ordinance, section 161 or section 145, as the case may be, shall apply.

Nothing in this subsection shall be deemed to apply to any statement falling within the provisions of section 32 (1) of the Evidence Ordinance, or to prevent such statement being used as evidence in a charge under section 180 of the Penal Code.

No inducement to be offered.

123. No inquirer or police officer shall 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 no inquirer or police officer shall 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 officer or inquirer.

124.

(1) Whenever any officer in charge of a police station or an inquirer making an investigation in a cognizable case 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 if 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 headman to make the search, and he shall deliver to such headman 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 headman may thereupon search for such thing in such place.

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

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

125. 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.

126. If upon an investigation under this Chapter it appears to the officer in charge of the police station or the inquirer 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.

126A.

(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 the information is well founded, the officer in charge of the police station or the inquirer shall forthwith transmit to the Magistrate having jurisdiction in the case 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, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused is forwarded under this section may, from time to time, by warrant addressed to the Fiscal of a province and to the superintendent of any prison in that province, authorize the detention of the accused in the custody of the Fiscal for a term not exceeding fifteen days in the whole.

The provisions of section 289a shall apply to every such warrant.

(3) If the Magistrate considers further detention unnecessary, he may either withdraw the case from the inquirer and himself try such case, or inquire into it with a view to committal, or may require the accused to execute a bond, with or without sureties, to appear if and when so required.

Duty of officer or inquirer to forward case to a Magistrate’s Court, if evidence sufficient.

127.

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

When the officer in charge of a police station or an inquirer forwards an accused person before a Magistrate’s Court or takes security for his appearance, he shall send to such court any weapon or other article 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 officer or inquirer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before a Magistrate’s Court therein named and give evidence in the matter of the charge against the accused.

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

(3) If any complainant or witness refuses to execute such bond, such officer or inquirer shall report the same to the Magistrate’s Court, 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 accused.

Additional powers of inquirers.

128. Every inquirer shall, in addition to the powers herein before 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 inquirers in non-cognizable cases.

129.

(1) Every inquirer and police officer shall have power, upon receiving an order from a Magistrate, to investigate a non-cognizable offence and to exercise all the powers conferred upon them by this Chapter in respect of such investigation.

(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.

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

Report of police officer or inquirer.

131. Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed the officer in charge of the police station or inquirer making the same shall forward to the Magistrate’s Court within whose division such investigation was made a report in the prescribed form.

Powers of this Chapter to be cumulative.

132. Nothing in this Chapter contained shall be construed to restrict the powers or duties vested in or imposed on police officers by this Code or any other enactment.

CHAPTER XIII

STATEMENTS TO MAGISTRATES OR PEACE OFFICERS

No inducement to be offered.

133. Except as provided in Chapter XXII no peace officer or person in authority shall 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 no peace officer or other person shall 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.

134.

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

(2) Such statement shall be recorded and signed in the manner provided in section 302 and dated, and shall then be forwarded to the Magistrate’s Court by which the case is to be inquired into or tried.

(3) No Magistrate shall 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 of .

PART VI
PROCEEDINGS IN PROSECUTIONS

CHAPTER XIV

THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

A.-PLACE OF INQUIRY OR TRIAL

Ordinary place of inquiry and trial.

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

Any District or Magistrate’s Court to have jurisdiction over offences committed on territorial waters.

136. Any District Court or 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 Ceylon.

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

137. 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 Z to follow his ordinary pursuits; the offence of unlawfully causing grievous hurt to A may be inquired into by the Magistrate’s Court or tried by the District Court of either X, Y, or Z.

(c) A is put in fear of injury within the local limits of the jurisdiction of the District Court and Magistrate’s Court of X and is thereby induced within the local limits of the jurisdiction of the District Court and 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 inquired into by the Magistrate’s Court and tried by the District Court of either X or Y.

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

138. When an act is an offence by reason of its 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 inquired into or 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 inquired into 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 took place.

Escape from custody.

139. The offence of having escaped from custody may be inquired into or 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.

140. 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.

141. 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.

142.

(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 it consists of several acts done in different local areas,

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

Offence committed on a journey.

143. 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 the provisions of any law relating to railways, telecommunications, post office, arms and ammunition.

144. 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.

145. 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.

146. No sentence or order of any criminal court in the trial of an offence shall 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.

147.

(1) No court shall take cognizance-

(a) of 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;


[ 84,11 of 1954]

(aa) of 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;

(b) of any offence punishable under sections 190, 191, 192, 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;

(c) of any offence described in section 452 or punishable under sections 459, 463, 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;


[ 2, 63 of 1939.]

[ , [ 10, 6 of 1944.]

[ [ 2, 41 of 1945.]

(d) of any offence punishable under Chapter VI of the Penal Code or punishable under section 290a or section 291b of the same Code unless upon complaint made by the Attorney-General or by some other person with the previous sanction of the Attorney-General;

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

(f) of 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 in the case of the Supreme Court of the Registrar, and in the case of any other court of the District Judge, the Commissioner of Requests, or a Magistrate of such 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 no such sanction shall remain in force for more than six months from the date on which it was given.

CHAPTER XV

OF THE COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES’ COURTS

Proceedings in. Magistrate’s Court how instituted.

148.

(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 under Chapter XII or by a peace officer or a public servant or a Municipal servant or a servant of an Urban Council or 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 147.

(2) The written report under paragraph (b), the warrant of the Attorney-General under paragraph (e), and the written complaint under paragraph (f) of this section 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 no written complaint shall be entertained by a Magistrate.

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

149. 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 competent medical practitioner if he has not already been so examined.

Procedure in certain cases where accused is unknown.

150.

(1) Where the offence alleged in any proceedings instituted under section 148 (1) (a) or section 148 (1) (b) is an indictable one the Magistrate may, although no person by name is accused of having committed such offence, examine on oath the complain-ant 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 151.

Issue or process.

151.

(1) Where proceedings have been instituted under paragraph (a) or paragraph (b) or paragraph (c) of section 148 (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 62, 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 148 (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 148 (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 (d) of section 148 (1), the Magistrate shall forthwith examine on oath 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.

(3) Where proceedings have been instituted under paragraph (e) or paragraph (f) of section 148 (1), the Magistrate shall issue a summons for the attendance of the person named in the warrant or complaint, or a 1 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.

151A. Every summons or warrant issued under section 151 shall contain a statement of the particulars of the offence charged and in the case of a summons shall require the accused to appear with his witnesses (if any) at a time and place therein specified to answer the charge therein set forth.

Examination under section 151 to be recorded.

151B. Every examination held by the Magistrate under section 151 shall be recorded in the manner provided in section 150 (2).

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

Procedure to be adopted when case proceeds.

152.

(1) Where the offence appears to be one not triable summarily by a Magistrate’s Court the Magistrate shall follow the procedure laid down in Chapter XVI.

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

(3) Where the offence appears to be one triable by a District Court and not summarily by a Magistrate’s Court and the Magistrate being also a District Judge having jurisdiction to try the offence is of opinion that such offence may properly be tried summarily, he may try the same summarily following the procedure laid down in Chapter XVIII and in that case he shall have jurisdiction to impose any sentence which a District Court may lawfully impose.

In case of homicide Magistrate to hold inquiry on spot.

153. If in a proceeding instituted under section 148 the case appear 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 the next following Chapter 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 150 (2).

In summons case personal attendance of accused may be dispensed with.

154. 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 herein before provided.

CHAPTER XVI

OF THE INQUIRY INTO CASES WHICH APPEAR NOT TO BE TRIABLE SUMMARILY BY A MAGISTRATE’S COURT, BUT TRIABLE BY A HIGHER COURT

Preliminary inquiry.

155. When the accused appears or is brought before the Magistrate’s Court the Magistrate shall hold a preliminary inquiry according to the provisions hereinafter contained.

Accused to be informed of charge.

156. 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 he recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.

Depositions.

157.

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

(2) 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 advocate or proctor 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 that witness.

Variance between charge and evidence.

158.

(1) Any variance between facts stated in the charge read over to the accused under section 156 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 future 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 of prosecution case.

159. 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 in accordance with the provisions of section 162, 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.

160.

(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 302.

Evidence for the defence.

161.

(1) Immediately after complying with the requirements of section 160 relating to the statement of 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 advocate or proctor (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 advocate or proctor 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 157 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.

162.

(1) If the Magistrate considers that the evidence against the accused is not sufficient to put him on his trial, the Magistrate shall forthwith 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) Nothing in this section shall 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.

163.

(1) If the Magistrate considers the evidence sufficient to put the accused on his trial, the Magistrate shall commit him for trial.

(2) If the offence disclosed by the evidence is, according to the First Schedule, triable by the Supreme Court only, he shall commit the accused for trial before the Supreme Court, but if the offence is according to that Schedule triable by a District Court as well as by the Supreme Court, he shall, in his discretion, commit the accused for trial before the Supreme Court or the District Court.

Where evidence contradictory.

164. Where there is a conflict of evidence, the Magistrate shall consider the evidence to be sufficient to put the accused on his trial if the evidence against him is such as, if uncontradicted, would raise a probable presumption of his guilt, notwithstanding that it is contradicted in material points by evidence in favour of the accused, unless the Magistrate, for reasons recorded on the proceedings, shall see fit to deviate from this rule.

Accused’s witnesses.

165.

(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 there are no reasonable grounds for believing that the evidence of such witness is 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 62 and 63, 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.

165A.

(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 higher court, in case the accused be committed for trial. It shall not be necessary to specify such higher court in the bond, but the obligor shall be bound on receiving reasonable notice to attend at the trial in whatever 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.

Accused to elect panel of jurors.

165B. On committing the accused for trial before any higher court the Magistrate shall ask the accused to elect from which of the respective panels of jurors the jury shall be taken for the trial in the event of the trial being held before the Supreme Court, and the Magistrate shall record such election if made. The accused so electing shall, if the trial is held before the Supreme Court be bound by and may be tried according to his election, subject however in all cases to the provisions of section 224.

Magistrate to certify record.

165C. 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 copy of evidence.

165D. When the accused has been committed for trial he shall, if he demands it at a reasonable time before the trial, be furnished by the officer in charge of the record with a copy of the record or of any part thereof on payment of six cents for a hundred words:

Provided that the Magistrate or, if the record has been transmitted to the court of trial, any judge of that court, may if he thinks fit in any case, direct the officer in charge of the record to furnish such copy to the accused free of cost.

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

165E.

(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 Fiscal of a province and to the superintendent of any prison in that province, commit the accused to the custody of the said Fiscal until and during the trial, and shall forthwith transmit the record of the inquiry together with all documents produced in evidence to the court of trial, and shall also forward to the Attorney-General a copy of the record of the inquiry certified under his hand. All productions other than documentary evidence shall be forwarded to the Fiscal to be produced by him at the trial.

(2) The provisions of section 289a shall apply to every warrant issued under this section.

Presentation and service of indictments.

165F.

(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 Supreme Court or a District Court, an indictment shall be drawn up and when signed in accordance with the provisions of section 186 (1) shall be forwarded to the court of trial selected by the Attorney-General to be filed in that court. 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.

(2) Where the Attorney-General in any case forwards an indictment to a court other than the court to which the accused has been committed by the Magistrate, the Registrar or the Secretary, as the case may be, of the court to which the record was forwarded by the Magistrate under section 165e, shall, at the request of the Attorney-General, transmit such record to the court selected by the Attorney-General under subsection (1) for the trial of the accused.

(3) When the Attorney-General forwards an indictment to the court of trial he shall at the same time forward to the Fiscal of the province in which is situate the court of the committing Magistrate a copy or copies of the indictment for service on the accused or each of the accused who will be tried upon that indictment. The Fiscal shall forthwith and at least fourteen days before the day specified for trial serve or cause to be served on the accused the copy or copies of the indictment so forwarded to him by the Attorney-General and shall make return of such service to the court of trial and to the Attorney-General or to any officer appointed by the Attorney-General to represent him.

(4) The Fiscal shall together with the indictment, or as soon as possible after the service thereof, serve or cause to be served on each accused a notice specifying the date fixed for the trial of that accused before the Supreme Court or the District Court, as the case may be.

(5) Service on an accused of any indictment or notice of trial under this section shall be effected in the manner prescribed 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 indictment or notice shall be affixed to some conspicuous part of the house or homestead in which the accused ordinarily resides, and in such case the indictment or notice shall be deemed to have been duly served.

Offences triable by a District Court may be tried summarily with consent of accused.

166.

(1) If the offence being inquired into is within the jurisdiction of a District Court and the Magistrate thinks it expedient so to do having regard to the character and antecedents of the accused, the nature of the offence, and all the circumstances of the case, he may if the accused when informed of his right to be tried by a District Court consents to be tried by the Magistrate try the case accordingly, and the provisions of Chapter XVIII shall apply to such trial.

(2) A Magistrate trying an accused under this section shall have power to award such accused, if found guilty of the offence charged, both or either of the punishments following, (that is to say) imprisonment of either description for a term not exceeding twelve months and fine not exceeding two hundred rupees, or if the accused be under sixteen years of age may order him to be whipped either without or in addition to one of the said punishments.

(3) For the purpose of proceeding under this section the Magistrate, when during the hearing of the case he becomes satisfied by the evidence that it is expedient to deal with the case under this section, shall frame a charge and read and explain the same to the accused and say to him, ” Do you desire to be tried by a District Court or do you consent to be tried by me ? ” with a statement for the information of the accused, where he is not represented by a pleader, of the difference between trial by a District Court and trial by a Magistrate’s Court.

CHAPTER XVII

OF THE CHARGE

Charge to state offence.

167.

(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 1, 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 exceptions 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 state 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 those words.

Particulars as to time, place, and person.

168.

(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, 57 of 1947.]

(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 179:

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.

169. When the nature of the case is such that the particulars mentioned in the last two preceding sections 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.

170. 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.

171. No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was 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.

172.

(1) Any court may alter any indictment or charge at any time before judgment is pronounced or, a the case of trials before the Supreme Court or a District Court with assessors, before the verdict of the jury is returned or the opinions of the assessors are expressed,

(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 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.

173. If the alteration made under the last preceding section 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.

174. If the alteration made under section 172 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

175. If the indictment or charge as altered under section 172 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 charge altered.

176. 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 witness who may have been examined.

Effect of material error.

177.

(1) If the Supreme Court 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.

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

Illustration

A is convicted of an offence under section 193 of the Penal Cod 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 for separate offences.

178. 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 179, 180, 181, and 184, 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.

179.

(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 Supreme Court or a District 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.

180.

(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 Supreme Court or a District Court such charges may be included in one and the same indictment.

Offence falling within two 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 Supreme Court or a District 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, institute 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 Supreme Court or a District Court such charges may be included in one and the same indictment.

(4) Nothing contained in this section shall affect section 67 of the Penal Code.

Illustration

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 o 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.

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

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

Where it is doubtful what offence has been committed.

181. 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 Supreme Court or a District Court may be included in one and the same indictment; or he 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 may be convicted of a different offence.

182. If in the case mentioned in the last preceding section 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,

183.

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

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

(3) Nothing in this section shall be deemed to authorize a conviction for any offence referred to in section 147 when no complaint has 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.

183A. 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 nothing in this section shall 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 Ceylon.

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

184. 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 has 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 the 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 conviction on one charge remaining charges may be withdrawn.

185.

(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.

Charges to be brought in name of Attorney-General.

186.

(1) All indictments upon which persons are tried before the Supreme Court or a District Court shall be brought in the name of the Attorney-General and be accordance with the prescribed form and shall be signed by the Attorney-General or the Solicitor-General or a Crown Counsel or by some advocate generally or specially authorized by the Attorney-General in that behalf, and in the latter case the words ” By authority of Her Majesty’s Attorney-General ” shall be prefixed to the signature.

(2) Every indictment shall contain a list of the witnesses which the prosecution intends to call at the trial and another list of all documents and things intended to be produced at the trial, which documents and things are herein called ” productions “.

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

CHAPTER XVIII

THE TRIAL OF CASES WHERE A MAGISTRATE’S COURT HAS POWER TO TRY SUMMARILY

Particulars of case to be stated to accused.

187.

(1) Where the accused is brought before the court otherwise than on a summons or warrant the Magistrate shall after the examination directed by section 151 (2), if he is of opinion that there is sufficient ground for proceeding against the accused, frame a charge against the accused.

(2) In cases where the accused appears on summons or warrant it shall not be necessary to frame a charge but the statement of the particulars of the offence contained in the summons or warrant shall be deemed to be the charge and the provisions of this Code as to the amendment and alteration of charges shall apply to the same accordingly.

(3) The Magistrate shall read such charge or statement, as the case may be, to the accused and ask him if he has any cause to show why he should not be convicted:


Provided that in all cases in which a prosecution commenced on a written report under section 148 (1) (b), and such report amended if necessary by the Magistrate, discloses an offence punishable with not more than three months’ imprisonment or a fine of fifty rupees, it shall be lawful for the Magistrate to read such report, amended if necessary, as a 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.

188.

(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.

(2) If the accused does not make such statement 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 (5) of section 289, either postpone the trial to a day to be then fixed or proceed forthwith to try the case in manner hereinafter provided.

But nothing herein contained shall prevent the Magistrate from taking in manner hereinafter provided the evidence for the prosecution and of such of the witnesses for the defence as may be present, and then, subject to the provisions of subsection (5) of section 289, for reasons to be recorded by him in writing adjourning the trial for a day to be fixed by him.

Procedure on trial.

189.

(1) When the Magistrate proceeds to try the accused he shall take in manner hereinafter provided 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.

190. If the Magistrate after taking the 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.

191. Nothing herein before contained shall 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.

Commitment for trial before higher court.

192.

(1) If the Magistrate after taking the evidence adduced for the prosecution and the defence is of opinion that the accused is guilty of an offence which cannot be adequately punished by a Magistrate’s Court, he shall not convict the accused but shall commit the accused for trial to the Supreme Court or to the District Court, as to him may seem fit, and shall follow the procedure prescribed in Chapter XVI in regard to the steps to be taken after the commitment of an accused for trial.

(2) The Attorney-General may in such a case exercise any of the powers vested in him by this Code in a case where a Magistrate has committed an accused for trial and forwarded to the Attorney-General a certified copy of the record of an inquiry held under Chapter XVI.

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

193.

(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, summons, or warrant, 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 XVII as relate to altered charges shall apply to the charge framed under this section.

(2) If from the facts admitted or proved it appears at any stage of the proceedings that the accused has committed an offence not within the jurisdiction of the Magistrate to try, the Magistrate shall not convict but shall stay further proceedings under this Chapter and commence the proceedings afresh under Chapter XVI.

Accused may be acquitted in the absence of complainant.

194. If the summons has been issued on complaint under section 148 (1) (a) and 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 herein before 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 Crown 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 section.

Withdrawal of charge by complainant.

195. 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 nothing herein contained shall be taken to extend the powers of a Magistrate to allow the compounding of offences under the provisions of section 290.

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

196. In any case instituted under this Chapter other-wise than upon a complaint under section 148 (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 judgement either of acquittal or conviction and may thereupon discharge the accused.

By whom prosecutions under this Chapter may be conducted.

199.* The Attorney-General, the Solicitor-General, a Crown 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 Crown Counsel, and any such 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.

* Sections 197 and 198 repealed by section 3 of Ordinance No. 40 of 1921.

CHAPTER XIX

TRIALS BY DISTRICT COURT

Trials before District Court to be by Judge or with assessors.

200. Trials before a District Court shall be before a District Judge alone or aided by assessors.

By whom trials before District Court to be conducted.

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

Attorney-General may withdraw prosecution.

202. The Attorney-General may at any time before the verdict is recorded withdraw any indictment and the prosecuting counsel may also with the permission of the District Judge at any time before the verdict is recorded withdraw any indictment, and thereupon all proceedings thereon shall be stayed and the accused shall be discharged.

Indictment.

203.

(1) If the case comes before the court on the committal of a Magistrate’s Court the accused shall be arraigned on the indictment served on him as provided by section 165f.

In case of transfer indictment to be framed upon the evidence.

(2) If the case comes before the court from a Magistrate’s Court by virtue of an order of transfer made by the Supreme Court the indictment shall be framed upon the facts disclosed on the examination of the complainant or informant, and the evidence taken in the case and a copy of such indictment shall be served on the accused.

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.

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.

Refusal to plead or plea of not guilty.

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

CHOOSING ASSESSORS

Assessors to be chosen and sworn.

207. When the trial is to be held with the aid of assessors two or more shall be chosen, as the District Judge thinks fit, from the persons summoned to act as such and shall be duly sworn as jurors are sworn.

Counsel to open his case and call witnesses.

208.

(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.

Accused’s statement to be put in.

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

Court may acquit without calling for defence, or call for defence.

210.

(1) When the case for the prosecution is closed if the District 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 District 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.

211. The accused or his pleader may then enter upon his defence and may examine his witnesses (if any) and the accused person or his pleader may then sum up his case.

When prosecuting counsel entitled to reply.

212. If any evidence is adduced on behalf of the accused the prosecuting counsel shall, subject to the provisions of subsection (2) of section 296, be entitled to reply and with the leave of the District Judge to call witnesses in rebuttal.

Judge to sum up evidence.

213.

(1) When the cases for the prosecution and the defence are concluded the District Judge may sum up the evidence for the prosecution and defence; and in a case tried with the aid of assessors he shall do so and shall require each of the assessors to state his opinion orally and shall record such opinion.

(2) The District Judge shall not be bound to conform to the opinion of the assessors.

Judge to pass judgment.

214.

(1) When the cases for the prosecution and defence are concluded and the assessors’ opinion, if the trial has been with the aid of assessors, has been recorded the District Judge shall forthwith or within not more than twenty-four hours record a verdict of acquittal or conviction.

(2) If the accused person is convicted the District Judge shall pass sentence on him according to law.

In case of absence of an assessor.

215.

(1) If in the course of a trial with the aid of assessors at any time before the finding any assessor is from any sufficient cause prevented from attending throughout the trial or absents himself and it is not practicable to enforce his attendance, the trial shall proceed with the aid of the other assessor or assessors.

(2) If all the assessors are prevented from attending or absent themselves the proceedings shall be stayed and a new trial shall be held with the aid of fresh assessors.

(3) The provisions of section 239 with regard to trial by jury in the Supreme Court shall apply to trials with the aid of assessors in the District Courts.

CHAPTER XX

CHAPTER XX Trials Before The Supreme Court a. preliminary

Trials before Supreme Court.

216.

(1) All trials before the Supreme Court shall be by jury before a Judge or a Commissioner of Assize, provided always that the Chief Justice may in his discretion order that any trial shall be a trial at Bar and thereupon such trial shall be held at Colombo by jury before three Judges.

(2) In every trial before the Supreme Court the prosecution shall be conducted by the Attorney-General or the Solicitor-General or a Crown Counsel or by some advocate generally or specially authorized by the Attorney-General in that behalf.

Discontinuance of prosecution.

217.

(1) At any stage of a trial before the Supreme Court under this Code before the return of the verdict the Attorney-General may, if he thinks fit, inform the court on behalf of Her Majesty 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.

Indictment.

218.

(1) If the case comes before the court on the committal of a Magistrate’s Court the accused shall be arraigned on the indictment served upon him as provided by section 165f.

(2) If the case comes before the court by virtue of an order of the Supreme Court of transfer from another court the indictment shall be framed upon the facts disclosed in the complaint or information and the evidence taken in the case and a copy of such indictment shall be served on the accused.

B.-COMMENCEMENT OF TRIAL

Arraignment of accused.

219. 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.

220. If the accused pleads guilty 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 and plea of not guilty.

221.

(1) If the accused does not plead or if he pleads not guilty jurors shall be chosen to try the case as hereinafter provided.

(2) If the accused pleads not guilty but states that he is willing to plead guilty to a 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 guilty 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.

222.

(1) The prosecuting counsel or the accused may apply to any Judge of the Supreme Court for an order requiring a special jury to be summoned to try any case; and the Judge 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 Crown Counsel shall be supported by affidavit.

C-CHOOSING A JURY

Number of jury and quorum for verdict.

223.

(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.

224.

(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 all 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 grounds of objection (if any) under the next following section.

(7) If there shall not be a sufficient number of jurors present unchallenged the jury may be made up from such of the bystanders as are not by law disqualified from serving as jurors. Any such bystander shall if called upon be legally bound to serve as a juror.

Grounds of objection.

225. 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 juror;

(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.

226.

(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 supplied by any other juror chosen in manner hereinafter provided.

Foreman of jury.

227.

(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.

Duties of foreman.

228. 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,

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

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

D.-TRIAL TO CLOSE OF CASE FOR PROSECUTION AND DEFENCE

Registrar to read indictment to jury.

231. As soon as the jury have been sworn the Registrar shall in the hearing of the accused read the indictment to the jury and 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.

Opening of case for prosecution.

232. 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 then examine his witnesses.

Statements by prisoner to be put in.

233. All statements of the accused recorded in the course of the inquiry 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 prosecution.

234.

(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.

235. 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.

Right of accused as to examination and summoning of witnesses.

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

Witnesses in rebuttal and right of reply.

237.

(1) The prosecuting counsel may by leave of the Judge call witnesses in rebuttal.

(2) The prosecuting counsel shall, subject to the provisions of subsection (2) of section 296, be entitled to reply on any evidence given by or on behalf of the accused.

View by jury of place where offence committed.

238.

(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.

239. 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 an adjourned sitting.

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

When jury may be kept together.

241.

(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 not to hold communication with any person other than a fellow juror upon the subject of the trial during such separation; and

(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.

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

E. CONCLUSION OF TRIAL

Charge to jury.

243. 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.

Duty of Judge.

244.

(1) 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.

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

Illustrations

(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.

245. 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 all 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 duty of the Judge to explain to the jury the distinction between murder and culpable homicide not amounting to murder and to tell them under what views of the facts A ought to be convicted of murder or of culpable homicide not amounting to murder or to be acquitted.

It is the duty of the jury to decide which view 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.

(b) The question is whether a person entertained a reasonable belief on a 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.

246.

(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 in the prescribed form.

(3) Except with the leave of the Judge no person other than a member of the jury shall speak to or hold any communication with any member of such jury.

When jury ready to give verdict.

247.

(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 for such time 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 state what is the verdict of the jury.

Verdict to be given on each charge.

248.

(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.

249.

(1) The Registrar shall make an entry of the verdict on the indictment and shall then say to the jury the words 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.

250. If the jury or the required majority of them cannot agree the Judge shall after the lapse of such time as he thinks reasonable discharge them.

Judgment in case of conviction.

251. If the accused is convicted the Judge shall either forthwith or before the close of the sessions 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 mean-lime to keep the peace and be of good behaviour.

F.-RE-TRIAL OF ACCUSED AFTER DISCHARGE OF JURY

Re-trial of accused.

252.

(1) Whenever the jury is discharged the accused shall 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 Fiscal of a province and to the superintendent of any prison in that province, and the provisions of section 289a shall apply to every such warrant.

G.-PROCEDURE IN CASE OF PREVIOUS CONVICTION

Procedure in case of previous conviction.

253.

(1) In the case of a trial by jury or with the aid of assessors, where the accused is charged with an offence committed after a previous conviction for any offence the procedure herein before 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 the District Judge and the assessors (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 or assessors 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 Ceylon.

CHAPTER XXA

OF EXPENSES OF WITNESSES, &C., COSTS, AND COMPENSATION

Power to make regulations.

253A.

(1) The Minister of Finance [1] may make regulations providing-

(a) for the payment out of the Consolidated Fund1 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 Supreme Court or a District 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 Fund2 of the expenses of persons summoned to serve as jurors or assessors in any trial before the Supreme Court or a District Court, respectively;

(c) for the persons by whom, and the manner in which, the amounts of such expenses shall be ascertained and payments made.

(2) Such regulations shall be laid as soon as conveniently may be before the House of Representatives,2 and may at any time within forty days after the date of their being so laid before the House of Representatives, [1] or at any of the three meetings of the House of Representatives [1] next succeeding such date, by resolution of the House of Representatives,1 be disallowed, amended, or otherwise dealt with as may be directed by the said House of Representatives,[1] but without prejudice to anything that may have been done thereunder.

Frivolous or vexatious complaints.

253B.

(1) If in any case instituted on complaint under suction 148 (1) (a) which a Magistrate’s Court has power to try, a Magistrate acquits or discharges the accused and declares that the complaint was frivolous or vexatious, it shall be lawful for such Magistrate to order the complainant to pay by way of Crown costs a sum not exceeding five rupees, and he 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 not exceeding ten rupees to each person as the Magistrate shall think fit, which sum if paid or recovered shall be taken into account in any subsequent civil suit relating to the same matter.

(2) Any sum awarded under this section shall be recoverable as if it were a fine, and if it cannot be recovered, the imprisonment to be awarded shall be simple and for such term not exceeding in the case of a sum awarded by way of compensation thirty days, and in the case of a sum awarded by way of Crown costs fourteen days, as the Magistrate directs at the time of awarding such sum.

(3) Before making any such order the Magistrate shall record and consider any objection which the complainant may urge against the making of the order, and if he makes such order he shall record his reasons for making the same.

(4) No appeal shall lie against any order for payment Crown costs.

Compensation for groundlessly giving in charge.

253C.

(1) Whenever any person causes a peace officer to arrest another person, if it appears to the Magistrate who takes cognizance of the case that there was no sufficient ground for causing such arrest, he may award such compensation not exceeding twenty-five rupees to be paid by the person so causing the arrest to the person so arrested for his loss of time and expenses in the matter as the Magistrate thinks fit.

(2) In such cases, if more persons than one are arrested, the Magistrate may in like manner award to each of them such compensation not exceeding twenty- five rupees as such Magistrate thinks fit.

(3) All compensation awarded under this section may be recovered as if it were a fine, and if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum be sooner paid.

(4) Such compensation shall be no bar to an action for false imprisonment.

Power of court to pay expenses or compensation out of fine.

253D.

(1) Whenever a criminal court imposes a fine or passes a sentence of which fine forms a part, or the Supreme Court confirms in appeal, revision, or otherwise a sentence of a fine or sentence of which fine forms a part, such 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 where substantial compensation is, in the opinion of the court, recoverable by civil suit.

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

(3) 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.

Power of court to order payment of compensation to aggrieved party.

253E.

(1) Whenever any person (hereafter referred to as the convict) is convicted by or before a criminal court, or the Supreme Court confirms in appeal, revision, or otherwise a sentence, such court may order the convict to pay such sum not exceeding one hundred rupees by way of compensation to any person affected by the offence (hereafter referred to as the aggrieved party) as to the court shall seem fit:

Provided that in the case of a person convicted before a Magistrate the amount awarded by him shall not exceed fifty rupees to each aggrieved party.

(2) Any sum awarded under this section shall be recoverable in the manner set forth in subsection (2) of section 312 of this Code for the recovery of fines, and if and when recovered shall be paid over to the aggrieved party.

(3) Such compensation shall be no bar to an action for false imprisonment.

CHAPTER XXI

OF JURORS AND ASSESSORS

Liability to serve as a juror or assessor

254. Subject to the provisions contained in the two sections next following every male person residing within Ceylon who has attained the age of twenty-one years and who is able to speak, read, and write any of the languages following, (that is to say) English, Sinhalese, or Tamil, and who possesses such income or property as is in section 257 in that behalf mentioned shall, whether or not his name is entered in any list of jurors by the same section directed to be made, be qualified and liable to serve as a juror in the Supreme Court at any sessions thereof held for the circuit and as an assessor in the District Court of the district within Which circuit and district respectively he is a resident:

Provided that the place where he resides is within the district of the District Court having jurisdiction over the place where such sessions or court is holden, or is not distant more than thirty miles in a straight line from such place, or if distant more than thirty miles is within eight miles by road of a railway station.

Persons who shall not serve as jurors.

255. The following persons shall not serve as jurors in the Supreme Court or as assessors in a District Court; that is to say: –

(a) the Governor-General [3] or person discharging the office of Governor-General [3] and members of his personal staff;

(b) the Judges of the Supreme Court and their private secretaries;

(c) [1] Senators and Members of Parliament;

(d) salaried functionaries of Foreign Governments who do not carry on any business within Ceylon ,

(e) [1] the Clerk and Deputy and Assistant Clerks to the Senate and to the House of Representatives;

(f) persons performing the duties of District Judge or Magistrate or Commissioner of a Court of Requests;

(g) Fiscals and their officers;

(h) persons appointed [1] to be inquirers under this Code;

(i) Presidents of Rural Courts;

(j) advocates and proctors in actual practice;

(k) officers of customs and pilots and police and all persons who receive any pay or emolument for executing any duties of customs or police;

(l) habitual petition-drawers;

(m) persons actually officiating as priests or ministers of their respective religions;

(n) persons employed in any Court of Justice;

(o) persons employed in the departments of the Attorney-General, or the Commissioner of Prison and Probation Services;

(p) persons who have suffered imprisonment with hard labour for a term of one month or upwards in any part of Her Majesty’s Realms and Territories and who have not received a free pardon:

(q) 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 or assessor.

Persons who shall not serve as jurors except with their own consent.

256. The following persons shall not serve as jurors in the Supreme Court or assessors in a District Court except with their own consent, that is to say-

(a) persons serving in Her Majesty’s Army, Navy or Air Force on full pay or active employment;

(b) all persons registered under the Medical Ordinance and in actual practice;

(c) persons employed in the Posts and Telecommunications Department, the Railway Department or the Survey Department, other than those engaged exclusively on clerical duties;

(d) persons over the age of sixty years;

(e) persons duly qualified as dispensers of drugs and actually employed as such;

(f) Registrars and Deputy Registrars of Births and Deaths.

What persons summoned to serve on a jury are entitled to be exempted from service

256A. Any person who has been summoned to serve on a jury at any sessions of the Supreme Court shall be entitled to be exempted from service if he has served as a juror at some other sessions of the Supreme Court holden within the same circuit 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) a Judge of the Supreme Court is of opinion that the exemption can be allowed without unduly reducing the panel.

Preparation of lists of persons liable to serve as jurors.

257.

(1) The Fiscals of the several provinces shall, with respect to each of the judicial districts within their provinces, prepare three several lists of the persons who, under section 254, are qualified and liable to act as jurors and assessors, setting forth their names in full, occupations, and places of residence, that is to say-

English.

(a) a list of persons who can speak, read, and write the English language, and each of whom possesses in his own or his wife’s right an income of not less than two thousand rupees a year, or is in the enjoyment of a monthly salary of not less than two hundred rupees;

Sinhalese.

(b) a list of persons who can speak, read, and write the Sinhalese language, and each of whom possesses in his own or his wife’s right property, immovable or movable, not less than one thousand rupees in value, or an income of five hundred rupees a year;

Tamil.

(c) a list of persons who can speak, read, and write the Tamil language, and each of whom possesses in his own or his wife’s right property immovable or movable, not less than one thousand rupees in value, or an income of five hundred rupees a year; and also

Special jury.

(d) a list of persons selected from list (a), each of whom possesses an income of not less than three thousand rupees a year, or either in his own or in his wife’s right property, movable or immovable, not less than twenty-thousand rupees in value, or is in the enjoyment of a monthly salary of not less than five hundred rupees, who shall be denoted in list (a) by an asterisk or other mark, and shall be liable to serve as special jurors as hereinafter prescribed:

Provided always that if any person who shall be able to speak, read, and write more than one of the above-mentioned languages and shall be in other respects duly qualified shall at any time declare to the Fiscal his desire to be placed on any one of the lists (a), (b), and (c) respectively in preference to another of the same lists, the Fiscal shall, if such person be duly qualified , place him accordingly; and no person whose name shall be placed on any one of the same three lists shall be liable to serve on any other of the same lists, unless such person, with the leave of the presiding judge, shall consent thereunto;

Provided further, that it shall be competent for the Minister, by Order to be by him for that purpose issued, to dispense with the qualifications as to income, salary, or property, or to reduce the amount thereof in respect of any one or more of the above specified four lists in any province in which sufficient panels cannot be secured of jurors having the qualifications herein prescribed.

(2) For the purpose of enabling such lists to be prepared, the Fiscals of the several provinces shall, as soon as may be, after the first January in each year, forward a list of all persons resident within their provinces who are liable to serve at any session of the Supreme Court holden in any other province to the Fiscal of such last-named province.

Revision of lists.

258.

(1) In the month of July in every year the Fiscal shall revise the said lists by adding thereto the names of all persons who at the date of such revision ought to be included in such lists and by striking out the names of all persons who at the same date ought not to be included therein.

(2) Any Judge may from time to time order the name of any person who in his opinion ought to be included in any such list to be added thereto and it shall thereupon be added.

(3) All names added to a list shall be denoted by some distinguishing mark.

Fiscal may call for information for purpose of making up jury list.

259. The Fiscal may for the purpose of preparing or revising such lists require any person found in his Province to give his full name, occupation, and place of abode and to state whether he has or has not the Property, income, or salary qualifying him to be a Juror or special juror as the case may be, and also to give the full name, occupation, and place of abode of every person in his employment or residing with him who is so qualified as aforesaid, and any person refusing or neglecting to give such information when requires or wilfully giving false information shall be liable on conviction by a Magistrate to a penalty not exceeding one hundred rupees.

Lists to be published in Gazette.

260. The fiscal shall as soon as such lists have been prepared or revised as the case may be cause the same to be published in the Gazette and send a copy thereof to the Registrar and to each District Judge in his province.

One panel of jurors to be prepared from each list.

261. On some day not less than one month before the commencement of each criminal sessions of the Supreme Court three panels of jurors to be summoned for attendance and service as jurors at such criminal sessions shall be prepared and taken before a Judge of the Supreme Court at Colombo in the following manner.

From each of the three lists of jurors which are distinguished by the letters (a), (b), and (c) one panel shall be prepared and taken and shall be designated by the language which distinguishes the list together with the name of the particular sessions for which it is formed.

How panel to be prepared.

262.

(1) Each such panel shall contain fifteen names and shall be prepared by first entering therein the names of the persons (if any) who shall have been ordered under section 265, 273, 278, or 279 to be so entered and by then drawing by lot and entering therein so many more names from the corresponding list of jurors as with those already entered in the panel as herein before provided will make up the number of fifteen.

(2) If at any sessions to be holden at Colombo the Chief Justice shall be of opinion that it is desirable that two courts should sit simultaneously for the trial of prisoners he may order that the panel of jurors taken from the list (a) shall consist of thirty names.

Manner in which names of jurors shall be drawn.

263. The manner in which the names of the jurors shall be drawn by lot shall be as follows: –

(a) for each of the judicial districts within which sessions of the Supreme Court are holden there shall be provided three boxes, hereinafter called ” jury boxes “, having locks for securely fastening them and divided into two compartments of equal size;

(b) each of the jury boxes shall have plainly painted or written thereon the name of the judicial district to which it belongs, and the class of jurors, whether English-speaking, Sinhalese-speaking, or Tamil-speaking panel, to which it relates;

(c) there shall also be provided a revolving box, hereinafter referred to as a ” ballot box “, and, if necessary, more than one of such boxes;

(d) the names of all persons liable to serve as jurors shall be distinctly written or printed or numbered with distinguishing numbers on discs of the same shape, size, colour, and appearance, made of bone or other material, and the same shall be done in respect of any additional names which may from time to time be added to the list of jurors under the provisions of section 258;

(e) the jury boxes shall be securely locked and shall be kept in the possession of the Registrar of the Supreme Court, and shall not be opened or any panel drawn therefrom except in manner hereinafter provided.

Manner in which names requisite to complete the panel shall be drawn.

264. On the day fixed for the preparation of the panel, the Registrar shall, in the presence of a Judge, open the jury box and, after removing all the discs from the undrawn compartment of the jury box and placing them in the ballot box, shall cause the ballot box to revolve so as to mix thoroughly the discs there-in. The Registrar shall then proceed to draw without selection a sufficient number of discs one by one until the number of names requisite to complete the panel shall have been obtained. As each disc is drawn the name of the juror thereon, or, if the disc be numbered, then the corresponding name, shall, subject to the provisions of the next section, be entered in the panel to which it belongs.

Where names of persons who are dead, &c, are drawn.

265.

(1) As each name is drawn, if it is the name of a person who is absent from Ceylon or of a person likely to be unable from sickness or other good cause to attend, then the Judge may order the name to be set aside, and in every such case an additional name shall be drawn in lieu of that so set aside; and the Judge may, if he thinks fit, order the name of any person so set aside to be entered in the panel of any subsequent sessions to be then named by him, and in such case the disc representing such name shall be forthwith placed in the compartment of the jury box from which it was not drawn.

(2) If any disc is drawn representing any person who the Judge is satisfied is dead or not qualified or liable to serve as a juror, the name of that person shall not be entered on the panel, and the disc representing such person shall not be returned to the jury box.

(3) If any discs have been drawn representing names which the Judge shall have ordered to be set aside, but which he shall not have ordered to be inserted it a subsequent panel, the discs representing such names shall be forthwith returned to the compartment of the jury box from which they were drawn.

Not more than one juror from same business establishment or estate.

266. Unless it be unavoidable not more than one person belonging to or employed in any mercantile or business establishment or on any plantation or estate shall be included in the same panel.

Name and address of juror to be written on panel.

267. The names in full, additions, and places abode of the several persons so drawn shall be written in the respective panels and numbered in the order in which the said names shall have been drawn and such panels shall be signed by the Judge.

Manner of dealing with discs after completion of panel.

268. After the panel shall have been completed the discs representing the names on the panel shall be set apart and kept enclosed in a sealed envelope or other receptacle until they have been disposed of as provided by section 273, and the discs remaining in the ballot box shall be removed therefrom and returned to the compartment of the jury box from which they were taken. The jury box shall then be locked, and this shall be repeated as often as any jurors are drawn until the whole of the names in the one compartment shall have been drawn, when in like manner they shall be drawn out of the second and returned to the first, and so on, alternately, from time to time, in order that every man qualified and liable to serve on juries may take his turn to serve thereon.

Copy of panels to be annexed to Fiscal’s precept.

269. A copy of the panels shall be annexed to a precept to the Fiscal commanding him to summon the persons named in the panels to attend and serve as jurors at the said sessions.

Persons named in panel to be summoned by Fiscal.

270. Every person named in the panels shall forthwith or as soon as possible after the receipt of the precept by the Fiscal be summoned by him and such summons in the case of panels prepared under section shall be served at least ten days before the first day of the sessions.

Jury summons to be in writing.

271.

(1) Every summons to a juror shall be in writing and shall require his attendance as a juror at a time and place to be therein specified and shall be served personally.

(2) In the case of a juror taken from either of the lists of jurors which are distinguished by the letters (b) and (c) the summons to him shall state that he need not attend the first day of the sessions but that he must hold himself in readiness to attend on any day of such sessions of which he may receive special notice.

Precept to be returned to Registrar with Fiscal’s memorandum.

272. The Fiscal shall as soon as possible after service of summons and not later than seven days before the commencement of the sessions in case of panels prepared under section 261 return the precept to the Registrar with the panels annexed thereto and a memorandum showing where and when each person named in the panel was served; and if any person or persons named in the panel shall not have been served the memorandum shall state the fact and the reason why such service has not been effected and shall be supported by the affidavit of the officer whose duty it, was to effect such service.

Procedure on receipt of return.

273.

(1) On the receipt of such return the Registrar shall without delay bring the same before one of the Judges of the Supreme Court, who may direct service to be made upon the person or persons not already served in such manner as to him may seem fit.

(2) The Registrar shall prepare from the memoranda furnished by the Fiscal under section 272 and shall lay before the Judge at the close of the sessions a list of the persons named in any panel or supplementary panel on whom service has not been effected; and the Judge may with regard to such persons order that the names of any of them shall be entered on the panel of any subsequent sessions named by him.

(3) The discs which have been set apart in pursuance of section 268 shall at the close of such session be disposed of as follows: –

(a) the discs representing-

(i) persons who have been duly served, including those with respect to whom the Judge has made order under section 256a or section 278 or section 279, and

(ii) persons with regard to whom the Judge has made order under subsection (2) of this section,

shall be placed in the compartment of the jury box from which they were not drawn;

(b) the discs representing persons who are shown by Fiscal’s memoranda as not having been served shall, subject to any order which the Judge may have made with regard to any of such persons under subsection (2), be returned to the compartment of the jury box from which they were drawn.

Judge may order further list of jurors to be summoned.

274.

(1) If the Judge shall be of opinion that the number of jurors returned by the Fiscal as served is not likely to be sufficient he may cause to be drawn in the manner herein before provided such further number of names as may be required to make up the full number of jurors; and the supplemental panel so formed shall be prepared and signed in the manner herein before provided for the original panel and a copy thereof shall be sent with an additional precept to the Fiscal, who shall as soon as possible after the receipt of such additional precept cause the persons named therein to be summoned to attend and serve at the sessions, and shall return the precept to the Registrar not less than one clear day before the first day of the sessions with a memorandum similar to that provided by section 272 in respect to the original panel and precept.

(2) The Judge before whom the sessions are being held, if and as often as he is of opinion that the number of jurors summoned and attending the sessions is insufficient, may cause a still further number of names to be drawn and the supplemental panel so formed and signed by him to be sent with a precept to the Fiscal, who shall summon the additional jurors and return the precept to the Registrar forthwith, and in a similar manner he may direct a panel of jurors to be drawn at other periods whenever such direction is found to be necessary.

Juror not bound to serve more than a fortnight.

275. No juror shall be compellable to serve more than a fortnight in any one sessions 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.

Special jury panel.

276. 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 Fiscal 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.

Person may apply to Registrar to be excused from attendance as juror.

278,* Any person whose name is included in any panel may apply in writing to the Registrar asking to be excused from attendance as a juror at the particular sessions for which the panel is prepared and stating the grounds on which the application is made. The Registrar shall as soon as possible bring such application before the Judge of the sessions or some other Judge and such Judge may make such order thereon as he may think fit.

* Section 277 repealed by section 3 of Ordinance No. 40 of 1921.

Judge may excuse juror from attendance.

279. The Judge may for reasonable cause excuse any juror from attendance at any particular sessions or on any particular day or days or time of the day and either unconditionally or on condition of his serving at the next or some subsequent sessions or some other day or time to be fixed by the Judge.

Juror absenting himself without leave liable to fine.

280.

(1) Any person summoned to attend as a juror or as an assessor, who without lawful excuse fails to attend as required by the summons, 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.

(2) Such punishment may be inflicted summarily on an order to that effect by the Judge and any fine imposed shall be recoverable by distress and sale of the movable property of the person fined by warrant of distress to be signed by the Registrar, which warrant shall be issued by the Registrar without further order if the amount of fine is not paid within seven days of being imposed if imposed in the presence of the person fined, or within seven days of its having come to his knowledge by notice or otherwise that the fine has been imposed if imposed in his absence:

Provided that it shall be lawful for the Judge if he thinks fit to remit any fine so imposed.

(3) 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 informality of jury list or panel.

281. No judgment, sentence, order, verdict, or other proceeding by, of, at, or before the Supreme Court at any criminal sessions thereof, or by, at, or before any District Court exercising criminal jurisdiction and nothing done in pursuance of the same shall be held invalid or illegal or be in any way called in question by reason of any informality in or about the preparation or publication or revision of any list or lists of jurors or of any panel or by reason of any defect or error in or about the qualification or liability of any juror or assessor.

CHAPTER XXII

GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

Power to compel attendance of witnesses.

282.

(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 the evidence of such witness is material, and if he is not so satisfied may refuse to summon the witness (recording his reasons for such refusal) or may before summoning him require such sum to be deposited as he thinks necessary to defray the expense of obtaining the attendance of the witness.

Tender of pardon to accomplice.

283.

(1) In the case of any offence triable exclusively by the Supreme Court or a District Court the Magistrate inquiring into the offence may, after having obtained the Attorney-General’s authority so to do, 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.

284. The Attorney-General at any time 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.

285. 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.

If pardon is withdrawn statement of person may be given in evidence against him.

286.

(1) The statement made by a person who has accepted a tender of pardon may be given in evidence against him when the pardon has been withdrawn under the last preceding section.

(2) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the Attorney-General.

Right of accused to be defended.

287. Every person accused before any criminal court may of right be defended by a pleader.

Procedure where accused who is not insane does not understand proceedings.

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

Power to postpone or adjourn proceedings.

289.

(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) No Magistrate shall remand an accused person to custody under this section for a term exceeding seven days at a time save and except at such Magistrates’ Courts as the Minister of Justice [1] shall from time to time notify to be Magistrates’ Courts at which longer remands may be made, when it shall be lawful to remand accused persons at any such Magistrates’ Courts for a term not exceeding fourteen days.

(3) Every order made under this section by a court other than the Supreme Court shall be in writing signed by the presiding Judge or Magistrate and shall state the reasons therefor, such reasons being in writing under the hand of such Judge or Magistrate.

(4) 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 the 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 appears likely that further evidence will be obtained by a remand, this is a reasonable cause for a remand.

(5) No inquiry or trial in a Magistrate’s Court shall 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.

(6) Every person remanded or committed to custody under this section shall be so remanded or committed by warrant addressed to the Fiscal of a province and to the superintendent of any prison in that province, and the provisions of section 289a shall apply to every such warrant.

Procedure on issue of warrants of commitment, &c., under sections 126A, 165E, 252 and 289.

289A.

(1) Every warrant of detention, commitment or remand issued under section 126a, section 165e, section 252, or section 289 shall be in the prescribed form and shall be delivered to the Fiscal who 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 a copy of the warrant certified under the hand of the Fiscal, an the said warrant shall be full authority to the Fiscal 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 Fiscal for such time as may be specified by the warrant, 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 copy of the warrant so certified as aforesaid shall be full authority to the said superintendent for the detention and custody of such person.

Compounding offences.

290.

(1) The offences described in the first two columns of Part A of the table next following may when no prosecution for such offence is actually Pending be compounded by the person mentioned in the third column of that table, or when a prosecution for such offence is actually pending be compounded such person with the consent of the Magistrate, but the Magistrate shall record his reasons for giving such consent.

(2) The offences described in Part B of this table may with the consent of the Attorney-General be compounded by the person to whom the hurt or the loss or damage was caused.

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

(4) When the person who would otherwise be competent to compound an offence under this section is a minor, an idiot, or a person of unsound mind, any person competent to contract on his behalf may compound such offence.

(5) The compounding of an offence under this section shall have the effect of an acquittal of the accused.

(6) No offence not described in this section shall be compounded

Trial of person previously convicted of certain offences.

291. Where any person having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Penal Code with imprisonment for a term of three years or upwards is again accused of any offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, the case shall, if the Magistrate before whom such person is accused considers him an habitual offender, ordinarily be committed for trial to a District Court or if the case be an exceptional one to the Supreme Court.

Change of Magistrate during hearing or inquiry.

292. 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 and 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 as follows: –

(a) in any trial the accused may when the second Magistrate commences his proceeding demand that the witnesses or any of them re-summoned and re-heard;

(b) the Supreme Court 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 court.

293.

(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 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 XVI 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 on Sundays and holidays.

294. No proceeding of any criminal court and no inquiry shall be invalid by reason of its being held on a Sunday or public holiday.

Case for prosecution to be explained by court to accused, if he is not represented by a pleader.

296.*

(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) When at any trial the evidence for the defence consists only of the evidence of the person or persons charged, as the case may be, the prosecution shall not 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 not be made the subject of adverse criticism by the prosecution.

CHAPTER XXIII

OF THE MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS

Evidence to be taken in presence of accused.

297. 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;

Provided that if the evidence of any witness shall have been taken in the absence of the accused whose attendance has not been dispensed with, such evidence shall be read over to the accused in the presence of such witness and the accused shall have a full opportunity allowed him of cross-examining such witness thereon.

How evidence to be taken down.

298.

(1) In District Courts and Magistrates’ Courts the evidence of each witness shall be taken down in writing in English by the District Judge or Magistrate, or in his presence and hearing and under his personal direction and superintendence and shall be signed and dated by the District Judge or Magistrate, and where the evidence is taken at an inquiry shall also be signed by the interpreter if any 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 District Judge or Magistrate may in his discretion take down any particular question and answer.

(3) For the identification of witnesses the following particulars shall be recorded as to each, namely-

(a) the race,

(b) occupation,

(c) age,

(d) place of residence,

(e) full name, and

(f) if a Tamil the name of his or her father, and

(g) if a married woman the name of her husband and where material the caste.

(4) Every District Judge or Magistrate 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.

299.

(1) As the evidence of each witness taken at an inquiry is completed or at some tune 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 deny 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 English the 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 of depositions by Magistrates.

(5) When a deposition has been read over to a witness and acknowledged to be 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 an English-speaking witness: ” 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) 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 this section were in fact complied with.

Interpretation of evidence to accused.

300.

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

(2) 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.

301.

(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 in a foreign language there shall be filed with it an English translation thereof or of so much thereof as is material.

(3) 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 initialling 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 of such evidence to be made and filed with the record.

How statement or examination of accused shall be recorded.

302.

(1) Whenever in the course of an inquiry under Chapter XVI, an accused makes a statement to a Magistrate the whole of such statement shall be recorded in full in the language in which he is examined or if that is not practicable in English, 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.

303. In cases tried before the Supreme Court the presiding Judge shall take or cause to be taken in writing notes of the evidence.

CHAPTER XXIV

OF THE JUDGMENT

Mode of delivering judgment.

304. The judgment in every trial under this Code shall be pronounced in open court either immediately after the verdict is recorded or 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.

Allocutus.

305. In the Supreme 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 persons under sixteen years of age.

305A. Where any person convicted of an offence Punishable with death, appears to the court to be under the age of sixteen 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.

305B.

(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 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 resworn.

(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 it 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-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 in lieu of death for pregnant women.

(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.

Punishment of imprisonment in lieu of death for pregnant women.

306. The following provisions shall apply to the judgments of courts other than the Supreme Court: –

(1) The judgment shall be written by the District judge or Magistrate who heard the case and shall be dated and signed by him. in open court at the time of pronouncing it, and in cases 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.

Judgment in alternative.

307. 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.

Sentences of death and whipping.

308.

(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 therein specified such day being not less than three weeks or more than six weeks from the date of the sentence.

(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 1 lashes or strokes to be inflicted, such number in no case to exceed twenty-four.

CHAPTER XXV

OF SENTENCES AND THE CARRYING OUT THEREOF

Provisions as to execution of sentences of death.

309. 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 for the commitment of the person sentenced to the custody of the Fiscal. Every such warrant shall be addressed to the Fiscal of the province in which the place where the sentence is to be carried out is situated, and to the superintendent of any prison at such place, and the provisions of section 311a shall apply to every such warrant;

(b) so soon as conveniently may be after sentence of death has been pronounced the Judge who presided at the trial or in case of his absence or inability a Judge shall forward to the Governor-General3 a copy of the notes to evidence taken on 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 carried out;

(c) the Governor-General3 after considering the said report shall inform the Supreme Court of any order he may have made thereon;

(d) the Governor-General3 may order a respite of the execution of the warrant or appoint some other time or other place for its execution;


[ 3, 67 Of 1938.]

(e)

(i) there shall be present at the execution of the sentence the Fiscal, the superintendent or a jailer of the prison, the medical officer of the prison, and such other officers of the prison as the Fiscal 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 Fiscal 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 Fiscal;

(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 Supreme Court and the other shall be forwarded to and filed in the office of the Minister of Justice; ‘

(f) when a sentence of death is avoided by the escape of the person sentenced to death execution of such sentence shall be carried into effect at such other time after his recapture as the Supreme Court shall order;

(g) no omission or error as to time and place and no defect in form in any order or warrant given under this section and no omission to comply with the provisions of paragraph (e) shall be held to render illegal any execution carried into effect under such order or warrant or intended so to have been carried into effect, or shall render any execution illegal which would otherwise have been legal

Execution of sentences of Supreme Court other than sentences of death.

310. With regard to sentences passed by the Supreme 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 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 Fiscal of a province and to the superintendent of any prison in that province, and the provisions of| section 311a shall apply to every such warrant.

Execution of sentences under section 53 of the Penal Code.

310A. When any person has been sentenced under section 53 of the Penal Code, to be detained during the Governor-General’s pleasure,3 he shall, notwithstanding any enactment to the contrary, be liable to be detained in such place and under such conditions as the Governor-General8 may from time to time direct, and whilst so detained shall be deemed to be in legal custody.

Execution of sentences of courts other than the Supreme Court.

311. With regard to sentences passed by courts other than the Supreme 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 District Judge or Magistrate who passed sentence 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 Fiscal of a province and to the superintendent of any prison in that province, and the provisions of section 311a shall apply to every such warrant

Procedure on issue of warrants under sections 309, 310, and 311.

311A.

(1) Every such warrant as is referred to in section 309, section 310, or section 311 shall be delivered to the Fiscal who 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 a copy of the warrant certified under the hand of the Fiscal, and the said warrant shall be full authority to the Fiscal for so doing, and for detaining the said person for the purpose, and for carrying into execution any sentence 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 on behalf of the Fiscal 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 copy of the warrant certified as aforesaid shall be full authority to the superintendent for such detention and custody and for carrying the sentence into execution.

(4) Nothing in this section shall affect the provisions of this Code relating to the execution of sentences of whipping.

Provisions as to sentences of fines.

312.

(1) Where any fine is imposed under the authority of any law for the time being in force, then. the absence of any express provision relating such fine in such law contained the provisions following shall apply, that is to say: –

(a) where no sum is expressed to which the fine may extend the amount to which the offender is liable is unlimited 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;


[ 4. 47 of 1938.]

(bb) Notwithstanding the provisions of paragraph (b), where the fine to which the offender is sentenced does not exceed four 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 15b;

(c) 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;

(d) 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;

(e) if the offence is not punishable with imprisonment the term 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: –


[ 4, 47 of 1938.]

(i) for a term of seven days where the amount of the fine exceeds four rupees but does not exceed seven rupees and fifty cents;

(ii) for any term not exceeding fourteen days where the amount of the fine exceeds seven rupees and fifty cents but does not exceed fifteen rupees;

(iii) for any term not exceeding twenty-one days where the amount of the fine exceeds fifteen rupees but does not exceed twenty-five rupees;

(iv) for any term not exceeding forty-two days where the amount of the fine exceeds twenty-five rupees but does not exceed fifty rupees;

(v) for any term not exceeding three months where the amount of the fine exceeds fifty rupees but does not exceed one hundred rupees; and

(vi) for any term not exceeding six months in any other case;

(f) the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law;

(g) 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;

(h) 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 and may be executed at any place in Ceylon, but if it is required to be executed outside the jurisdiction of the court by which it was issued it shall be indorsed 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 twenty-five rupees the tools and implements of his trade, including therein seed corn, 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 instalment, the same proceedings may be taken as if default had been made in payment of all the instalments then remaining unpaid.

Execution of sentence may be suspended on execution of bond by offender.

313. When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine and the court issues a warrant under the last preceding section, 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 Supreme 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 forthwith carried into execution.

Who may issue warrant.

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

When and where sentence of whipping to the executed.

315.

(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 cat or other implement of such description and in such manner as the Minister of Justice1 shall at any time or from time to time direct, and in the case of persons under sixteen years of age shall be inflicted with a light cane or rattan on the bare buttocks:


[ 2. 49 of 1939.]

Provided that in the case of any sentences of whipping inflicted under paragraph (b) of section 368 of the Penal Code on persons above sixteen years of age, such whipping shall be inflicted with a cane or rattan, or other like implement, and in such manner as the Minister of Justice1 shall at any time or from time to time direct.

Whipping not to be inflicted until after ten days.

316.

(1) When the accused is sentenced to whipping, the sentence shall not be carried out until after the expiration of ten days from the date of the pronouncement thereof, or (if an appeal is presented within that time) until the order of the Supreme Court shall have been notified to the accused, and the execution of the sentence shall be subject to the terms of such order:

Provided that no sentence of whipping shall be inflicted until the Minister of Justice1 has made order thereon, and the execution of the sentence shall be subject to, and in accordance with, such order.

(2) Subject to the provisions of the last preceding subsection and to the provisions of section 315 (1), the whipping shall be inflicted as soon as practicable after the receipt of the order of the Minister of Justice.1

(3) This section shall not apply to sentences of whipping passed on male offenders under sixteen years of age.

Whipping not to be inflicted unless medical officer certifies that offender is in a fit state of health.

317.

(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 whip-ping 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 may be discharged.

318.

(1) In any case in which under the last preceding section 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 revise 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) Nothing in this section shall 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.


[ 3, 49 of 1939.]

319. 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 or rattan, 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.

320.

(1) No convict shall 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 escaped convict of death or of fine or whipping with or without imprisonment, such sentence, if of death, fine, or whipping, shall subject to the provisions herein before 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.

321. 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.

323.* The provisions of sections 55 and 67 of the Penal Code shall apply to all offences whatever.

* Section 322 repealed by section 4 of Ordinance No. 49 of 1939.

Return of warrant on execution of sentence.

324. 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.

CHAPTER XXVI

CONDITIONAL DISCHARGE OF OFFENDERS, &C.

Power of courts to permit conditional release of offenders.


[ 22, 42 of 1944.]

325.

(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 conditionally 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.


[ 22, 42 of 1944,]

(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 either of the two last preceding sub sections, order the offender to pay, within such time or by such instalments as it may direct, such damages for injury or compensation for loss (not exceeding in the case of a Magistrate’s Court one hundred and fifty rupees, or, if a higher limit is fixed by any enactment relating to the offence, that higher limit), and to pay such costs of the proceedings as the court thinks reasonable, and, if the offender is under the age of| sixteen years, and it appears to the court that the parent or guardian of the offender has conduced to the commission of the offence, the court may order payment of such damages and costs by such parent or guardian.

(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 recognizances.


[ 22, 42 of 1944.]

326. 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 Judge or Magistrate of the court, or before the Magistrate of any Magistrate’s Court, at such intervals as may be specified in the order.

Power to vary conditions of recognizance.


[ 5 22, 42 of 1944.]

326C*. 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 been such that the recognizance should be discharged, discharge the recognizance.

Sections 326A and 326B repealed by section 22 of Ordinance No. 42 of 1944.

Provision in case of offender failing to observe conditions of recognizance.

327.

(1) If the court before which an offender is bound by his recognizance under this Chapter to appear for conviction or sentence, or any Magistrate’s Court, is satisfied by information on oath 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 other 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 on bail 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.


[ 22, 42 of 1944.]

327A. The Minister [1] may make rules for carrying the provisions of this Chapter into effect.

CHAPTER XXVII

OF SUSPENSIONS, REMISSIONS, AND COMMUTATIONS OF SENTENCES

Governor-General may suspend for remit sentences on conditions.

328.

(1) When any person has been sentenced to punishment for an offence the Governor-General [3] 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 Governor-General [3] for the suspension or remission of a sentence the Governor-General [3] may require the presiding Judge or Magistrate 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 fulfill the conditions prescribed by the Governor-General, [3] the Governor- General [3] 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) Nothing herein contained shall be deemed to interfere with the right of Her Majesty to grant pardons, reprieves, respites, or remissions of punishment.

Governor-General may commute sentence.

329. The Governor-General [3] may, without the consent of the person sentenced, commute any one of the following sentences for any of the commuted sentences indicated: –

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.
CHAPTER XXVIII

OF PREVIOUS ACQUITTALS OR CONVICTIONS

No person to be tried twice for same offence.

330.

(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 remains 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 181 or for which he might have been convicted under section 182.

(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 180.

(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 when the murder was committed. He may afterwards be charged with and tried for robbery.

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

(d) A is charged 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.

331.

(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 330 of the Criminal Procedure Code 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 XXIX

OF APPEALS

No appeal to lie except as provided for.

332. No appeal shall 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.

OF APPEALS TO THE QUEEN IN COUNCIL

Appeals to the Queen.

333. Nothing herein contained may or can take away or abridge the undoubted right and authority of Her Majesty to admit or receive any appeal from any judgment, decree, sentence, or order of the Supreme Court or any criminal court on behalf of Her Majesty or of any person aggrieved thereby in any case in which and subject to any conditions or restrictions upon or under which Her Majesty may be graciously pleased to admit or receive any such appeal.

Duty of all courts in such cases.

334. The Supreme Court and all courts from which an appeal shall be taken in any criminal matter shall in all cases of appeal to Her Majesty conform to, execute, and carry into immediate effect such judgments and orders as Her Majesty in Council shall make thereupon in such manner and by such procedure as any original judgment, decree, or order of such court can or may be executed.

CHAPTER XXX

APPEALS FROM DISTRICT OR MAGISTRATES’ COURTS TO THE SUPREME COURT

No appeal in certain cases.

335.

(1) Except as hereinafter in this section provided, there shall be no appeal 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 pleaded guilty and been convicted by a District Court on such plea;

(c) where an accused has under section 188 made an unqualified admission of his guilt and been convicted by a Magistrate’s Court.

Nor without the leave of the court in which the conviction was had in the following cases, that is to say: –

(d) where an accused has been sentenced by a District Court to a term of imprisonment not exceeding three months without any other punishment;

(e) where an accused has been sentenced by a District Court to a fine not exceeding one hundred rupees without any other punishment;

(f) where an accused has been sentenced by a Magistrate’s Court to a term of imprisonment not exceeding one month without any other punishment;

(g) where an accused has been sentenced by a Magistrate’s Court to a fine not exceeding twenty-five rupees without any other punishment.

(2) An appeal upon a matter of law shall lie in all the foregoing cases except (a).

Explanation.-There is no appeal from a sentence of imprisonment passed by either of such courts in default of payment of fines to the above amounts when no substantive sentence of imprisonment has been passed.

Appeal from acquittal.

336. There shall be no appeal from an acquittal by a District Court or a Magistrate’s Court except at the instance or with the written sanction of the Attorney-General.

Appeal against refusal to issue process.

337. Where a Magistrate’s Court has refused to issue process a mandamus shall lie to compel such court to issue such process, but there shall be no appeal against such refusal except at the instance or with the written sanction of the Attorney-General.

Right of appeal.

338.

(1) Subject to the provisions of the last three preceding sections any person who shall be dissatisfied with any judgment or final order pronounced by any Magistrate’s Court or District Court in a criminal case or matter to which he is a party may prefer an appeal to the Supreme Court against such judgment for any error in law, or in fact-

(a) by lodging within ten days from the time of such judgment or order being passed or made with such Magistrate’s Court or District Court a petition of appeal addressed to the Supreme Court, or

(b) by stating within the time aforesaid to the chief clerk or secretary of such court as the case may be 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 chief clerk, secretary, 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 provisions of section 335, the Attorney-General may prefer an appeal to the Supreme Court against any judgment or final order pronounced by a Magistrate’s Court or District 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 163 committing an accused for trial or an order made under section 162 discharging an accused is not a judgment or final order.

Computation of time.

339.

(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 Sundays and 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.

340.

(1) Every petition of appeal shall state shortly the grounds of appeal and shall be signed by the appellant or his proctor.

(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 advocate or proctor that such matter of law is a fit question for adjudication by the Supreme Court:

Provided that in courts where there is not more than one advocate or proctor practising such certificate shall not be required.

(3) Every such petition shall bear a stamp of five rupees:

Provided that no such stamp shall be necessary-

(a) if the appeal is preferred by the Attorney- General under section 338 (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 148 (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 see 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 given in whole or in part in favour of the appellant the amount of stamp fee when such has been paid shall be returned to him.

(5) If the appeal be given against the appellant such stamp fee when such has not been paid shall be paid by him or recovered from him in the way of fine unless the Supreme Court 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.

341.

(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 Supreme Court 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 be 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 Supreme Court is made known to the superintendent of the prison.

(5) The Supreme Court 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 Supreme Court and notice to be given to party in whose favour the judgment or order appealed against was pronounced.

342.

(1) On a petition of appeal being lodged the District Judge or the Magistrate as the case may be shall transmit the record of the case to the Supreme Court 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.

(2) In the case of an appeal from a District Court the Attorney-General shall be deemed to be the party complainant.

Procedure in Supreme Court on appeal.

343.

(1) When the record and petition of appeal have been transmitted to the Supreme Court 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 Supreme Court.

(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;

Provided also that a Judge on circuit may direct that any appeal pending from any Magistrate’s Court or District Court of such circuit be heard before him on such circuit and the same shall be heard accordingly.

Appellant to be heard first.

344.

(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.

345. 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 accused in appeal from acquittal.

346. When an appeal is presented against an acquittal the Supreme Court 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 Supreme Court on appeals.

347. 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.

Appellate court may take further evidence or direct it to be taken.

348.

(1) In dealing with an appeal under this Chapter the Supreme Court, if it thinks additional evidence to be necessary, may either take such evidence itself or direct it to be taken by any Judge of a District Court or by a Magistrate.

(2) When the additional evidence is taken the officer taking the same shall transmit the evidence so taken duly certified to the Supreme Court together with his opinion on such evidence.

(3) Unless the Supreme Court otherwise direct, the accused or his pleader shall be present when any additional evidence is taken under this and the last preceding section.

(4) The taking of such evidence shall be deemed an inquiry under Chapter XVI.

Judgment in appeal to be given in open court.

349.

(1) On the termination of the hearing of the appeal the Supreme Court shall either at once or on some future day, which shall either then be appointed for the purpose or of which notice shall subsequently be given to the parties or their advocates, deliver judgment in open court.

(2) If the court consists of two Judges and they differ the appeal shall be heard again by three Judges.

(3) If the court consists of three Judges the decision shall be that of the majority.

Order of Supreme Court to be certified to lower court.

350.

(1) Whenever a case is decided on appeal by the Supreme Court under this Chapter such court shall 1 certify its order under its seal to the court of first instance and shall return to such court the record and petition of appeal accompanied by a copy of the reasons (if any) given by the Supreme Court for its order.

(2) The court to which such order is certified shah thereupon make such orders as are conformable to the order so certified and if necessary the record shall be amended in accordance therewith.

Illustrations

(a) A sentenced to six months’ rigorous imprisonment after undergoing rigorous imprisonment for three days prefers an appeal and giving the required security is released. The Supreme Court affirms the sentence. The court from which the appeal is preferred will issue a fresh warrant of committal directing the appellant to undergo rigorous imprisonment for the term of six months less three days.

(b) A sentenced to six months’ rigorous imprisonment after undergoing imprisonment for four days prefers an appeal but is unable to give the required security and is accordingly detained in custody without hard labour for one month when the judgment of the Supreme Court affirming the sentence is made known. The Supreme Court orders that fourteen days of the time spent by A in custody without hard labour shall be reckoned as part of his sentence. The court from which the appeal is preferred will issue a fresh warrant of committal directing the appellant to undergo rigorous imprisonment for the term of six months less eighteen days.

Abatement of appeals.

351. Every appeal against an acquittal shall finally abate on the death of the accused and every other appeal under this Chapter shall finally abate on the death of the appellant.

Costs.

352. The Supreme Court shall have power in all proceedings under this Chapter to award such costs to be paid by or to the parties thereto as the said court shall think fit;

Provided that in no case shall such an order be made against the Attorney-General or the Solicitor-General.

CHAPTER XXXI

OF REFERENCE AND REVISION

Reservation of points of law.

353.

(1) Any District Court and any Magistrate’s Court acting in summary jurisdiction may if it thinks fit reserve for the consideration of the Supreme Court 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 in the prescribed form.

(3) Every such special case shall be drawn up by the District Judge or Magistrate of the court before which the proceedings are held and shall set out shortly the facts which are considered by the District Judge or 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 District Judge or Magistrate to the Registrar and shall be set down for argument in such manner as the Supreme Court 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.

354. The Supreme Court 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 Supreme Court may seem fit:

Provided always that no District Judge or Magistrate who shall state and deliver a special case in pursuance of this Code shall be liable to any costs in respect thereto.

Power to reserve questions arising in original jurisdiction of Supreme Court.

355.

(1) When any person has in a trial before a Judge of the Supreme Court acting in the exercise of its original criminal jurisdiction been convicted of an offence and sentenced, the Judge if he thinks fit may reserve and refer for the decision of a court consisting of two or more Judges 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 reserve 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 Supreme Court shall have power to hear and finally determine such question and thereupon to reverse, affirm, or amend the judgment or to make such other order as justice may require.

(3) When any person has in a trial before a Judge of the Supreme Court acting in the exercise of its original criminal jurisdiction 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 Supreme Court 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).

Supreme Court may call for record of any court.

356. The Supreme Court may call for and examine the record of any case, whether already tried or pending trial in any 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.

Powers of court on revision.

357.

(1) The Supreme Court 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 by sections 346, 347, and 348.

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

(3) Nothing in this section shall be deemed to authorize the Supreme Court to convert a finding of acquittal into one of conviction.

Optional with court to hear parties on review.

358. No party has any right to be heard either personally or by pleader before the Supreme Court 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 pleader.

When record called for by Supreme Court, Judge or Magistrate may submit statement of grounds of decision.

359. When the record of any case is called for by the Supreme Court under section 356 the District Judge 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 or Magistrate to carry into effect orders of Supreme Court.

360.

(1) When a case is revised under this Chapter by the Supreme Court 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 Supreme Court 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 XXXII

INQUESTS OF DEATHS

Inquest of death.

361. No inquest of death shall be held except under the provisions of this Code.

Duty of inquirers.

362.

(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 discloses a reasonable suspicion that a crime has been committed the Magistrate shall take proceedings under Chapters XV and XVI.

(4) Nothing herein contained shall preclude a Magistrate from forthwith holding an inquiry under the powers vested in him by section 9 of this Code, 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.

362A.

(1) 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.

(2) 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.

(3) 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 fifty 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.

363.

(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 or an inquirer authorized by him 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 or inquirer shall have all the powers which he would have in holding an inquiry into an offence.

Evidence and finding to be recorded.

364.

(1) The Magistrate or inquirer holding an inquiry prescribed under this Chapter shall record the evidence and his finding thereon.

(2) Where there are assessors the finding shall be signed by the assessors or by such of them as concur therein, but an assessor who dissents from the finding shall be at liberty to record on the proceedings his dissent and the reasons therefor. In every case where an assessor records his dissent the Magistrate or inquirer shall forthwith forward the proceedings to the Attorney-General.

(3) The place in which any 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.

365.

(1) The Magistrate or any inquirer empowered in that behalf by the Minister of Justice1 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 or inquirer may, if the dead body has already been buried, cause that body to be disinterred.

Assessors duly summoned to attend.

366. When any person has been duly summoned to attend as an assessor by any Magistrate or inquirer on an inquiry under this Chapter and shall fail or neglect to attend at the time and place specified in such summons it shall be lawful for such Magistrate or inquirer to cause such person to be openly called three times to appear and serve as an assessor, and upon the non-appearance of such person and proof that such summons has been served upon him or left at his usual place of abode to impose such fine upon the person so making default not exceeding twenty-five rupees as to. such Magistrate or inquirer shall seem fit, and such Magistrate or inquirer shall make out and sign a certificate containing the name, surname, and residence of every person so making default together with the amount of the fine which shall have been imposed and the cause of such fine, and the Magistrate or inquirer shall cause a copy of such certificate to be served upon the person so fined by having it left at his usual place of residence or by sending the same through the post office addressed as aforesaid, and within seven days thereafter such Magistrate or the Magistrate who has authorized the inquirer to hold the inquiry shall cause such fine to be levied.

CHAPTER XXXIII

Persons Of Unsound Mind

Procedure in case of accused being of unsound mind.

367.

(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 superior court being of unsound mind.

368.

(1) If any person committed for trial before the Supreme Court or a District Court appears to the court at his trial to be of unsound mind and consequently incapable of making his defence, the jury or the District Court with or without the aid of assessors 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 unsound mind pending investigation or trial.

369.

(1) Whenever an accused is found to be of unsound mind and incapable of making his defence the court, if the case is 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 of Justice and the Minister of Justice may by writing under the hand of the Permanent Secretary1 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.

370.

(1) Whenever an inquiry or a trial is postponed under the preceding sections of this Chapter the court may at any time resume the inquiry or 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 369 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.

371.

(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 367 or section 369, as the case may be.

When accused appears to have been of unsound mind.

372. 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 XVI.

Judgment of acquittal on ground of unsoundness of mind.

373. 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.

374.

(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, 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 of Justice.

(2) The Minister of Justice may by writing under the hand of the Permanent Secretary1 order such person to be confined in a mental hospital, prison, or other suitable place of safe custody until further orders.

Persons confined under this Chapter to be visited by Commissioner of Prison and Probation Services.

375. When any person is confined under the provisions of this Chapter the Commissioner of Prison and Probation Services 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 of Justice1 as to the state of mind of such person.

Procedure where person confined under section 369 is reported capable of making his defence.

376. If such person is confined under the provisions of section 369 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 371 and the certificate of such Commissioner or Visitors as aforesaid shall be receivable as evidence.

Procedure where person confined under sections 369 or 374 is declared fit to be discharged.

377. If such person is confined under the provisions of section 369 or section 374 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 of Justice [1] 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 of Justice [1] 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 of Justice [1] who may order his discharge or detention as he thinks fit.

Delivery of person confined to care of relative or friend.

378.

(1) Whenever any relative or friend of any person confined under the provisions of section 369 or section 374 desires that the person shall be delivered over to his care and custody the Minister of Justice, [1] upon the application of such relative or friend and on his giving security to the satisfaction of the Minister of Justice [1] 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 and at such times as the Minister of Justice1 directs.

(3) The provisions of sections 375 and 377 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.

379. A Magistrate proceeding under section 367 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 Fiscal 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 of Justice1 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 XXXIV

PROCEEDINGS IN CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE

Procedure in cases mentioned in section 147 (1), paragraphs (b) and (c).

380.

(1) When any civil or criminal court other than a Magistrate’s Court is of opinion that there is round for inquiring into any offence referred to in section 147 (1), paragraphs (b) and (c), 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 XVI with a view to a committal for trial by a higher court or remand the accused 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 XVI with a view to committal for trial by a higher court or may remand the accused to be tried by another Magistrate of his court.

Procedure in certain cases of contempt.

381.

(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, 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 hundred rupees and in default of payment to simple imprisonment which may extend to two months unless such fine be sooner paid; if a Court of Requests or a Magistrate’s Court, to a fine not exceeding twenty-five rupees and in default of payment to simple imprisonment for one month unless such fine be sooner paid.

(2) In every such case the court shall record on the proceedings the facts constituting the offence with the statement (if any) made by the offender as well as the finding and sentence and shall forthwith transmit a copy of such record to the Supreme Court so that the Supreme Court may if it thinks fit exercise its power of revision.

(3) 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.

(4) The court may in its discretion discharge the offender or remit the punishment on his submission to the order or requisition of such court or on apology being made to its satisfaction, and in such case it shall be unnecessary to forward the record to the Supreme Court as herein before is required.

Procedure where court considers case should not be dealt with under section last preceding.

382. If the court in any case considers that a person accused of any of the offences referred to in the last preceding section 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 herein before provided may proceed in manner following, that is to say: –

(a) if such court be a District Court it may for ward the case to the nearest Magistrate’s Court and may require security to be given for the appearance of such accused person before such Magistrate’s Court or if sufficient security is not given forward such person under custody to such Magistrate’s Court and such Magistrate’s Court shall thereupon proceed according to law; or

(b) if such court be a Magistrate’s Court it may hold an inquiry under Chapter XVI with a view to a committal for trial by a higher court:

Imprisonment or committal of person refusing to answer or produce document.

383.

(1) If any person before a criminal court other than the Supreme Court 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 civil 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 sections 381 or 382.

(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 him to the Supreme Court so that the Supreme Court may if it thinks fit exercise its power of revision.

District Judges and Magistrates not to try offences referred to in section 147 (1), paragraphs (b) and (c) when committed before themselves.

384. Except as provided in this Chapter no District Judge or Magistrate shall try any person for any offence referred to in section 147 (1), paragraphs (b) and (c), 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.

PART IX
SUPPLEMENTARY PROVISIONS

CHAPTER XXXV

OF PROCEEDINGS BY THE ATTORNEY-GENERAL

Attorney -General may exhibit informations.

385. The Attorney-General may exhibit to the Supreme Court informations for all purposes for which Her Majesty’s Attorney-General for England may exhibit informations on behalf of the Crown in the High Court of Judicature, but no such information shall be exhibited for any offence punishable by death or by rigorous imprisonment for three years or upwards. Such proceedings may be taken upon every such information as may lawfully be taken in cases of similar informations filed by Her Majesty’s Attorney-General in England so far as the circumstances of the case and the course and practice of proceeding in the said Supreme Court respectively will admit.

What persons are deemed to have been brought before the court.

386. All persons appearing before the Supreme Court under a commitment for trial or in pursuance of bail so to appear 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

387.

(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 165E, 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 Fiscal.

(2) It shall be the duty of the Registrar of the Supreme Court or the secretary of the District Court, as the case may be, and of the Fiscal 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.

388. If, after the receipt by him of the certified copy of the record of an inquiry forwarded under section 165e, 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 Supreme Court or the secretary of the District Court, according as the accused has been committed for trial before the Supreme Court or a District 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.

389.

(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 Supreme Court or the secretary of the District Court, as the case may be, shall so return the record and the Magistrate shall comply with the order of the Attorney-General.

(2) The supplemental inquiry may be conducted in the Magistrate’s Court by a Magistrate thereof other than the Magistrate who conducted the original inquiry.

Magistrate to transmit proceedings to Attorney-General when required.

390.

(1) A Magistrate or District Judge 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 an adjournment thereof.

(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 such 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.

391. Whenever a Magistrate’s Court shall have discharged an accused under the provisions of section 162 and the Attorney-General shall be of opinion that such accused should not have been discharged the Attorney-General may direct it to commit such accused to the court nominated by the Attorney-General 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.

392.

(1) No person other than the Attorney-General, the Solicitor-General, Crown Counsel, or a pleader generally or specially authorized by the Attorney-General shall 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, Crown Counsel, and a pleader generally or specially authorized by the Attorney-General the Magistrate shall conduct the prosecution, but nothing in this section shall 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 Crown Counsel.

393. The Solicitor-General and Crown 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 nolle prosequi and of pardoning an accomplice, conferred and perform all or any of the duties imposed upon the Attorney-General by this Code.

CHAPTER XXXVI

OF BAIL

Bail to be taken in case of bailable offence.

394. 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 in case of non-bailable offence.

395.

(1) A Magistrate or District Judge, at any stage of any inquiry or 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 be so released if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable under sections 114, 191, or 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, 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) When any person has been committed for trial by a Magistrate for any non-bailable offence other than an offence under sections 114, 191, or 296 of the Penal Code the Magistrate may in his discretion release the accused on bail. Any person charged under sections 114, 191, or 296 of the Penal Code may be admitted to bail by the authority of the Attorney-General.

(4) Any court may at any subsequent stage of any proceeding under this Code cause any person who has been released under this section to be arrested and may commit him to custody.

Bail not to be excessive and Supreme Court may admit to bail in any case.

396. 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 the Supreme Court may in any case direct that any person be admitted to bail or that the bail required by a Magistrate be reduced or increased.

Bond of accused and sureties.

397.

(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 require, the bond shall also bind the person released on bail to appear when called upon at the Supreme 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.

398.

(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) Nothing in this section, section 394, or section 395 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

Power to order sufficient bail when that first taken is insufficient.

399. 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.

400.

(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 made the court shall issue a warrant of arrest directing that the person so released be brought before it.

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

(4) A surety may at any time arrest the person for whose attendance and appearance he is a surety and forthwith bring him before a Magistrate’s Court, which shall thereupon discharge such surety’s bond and shall call upon such person to find another sufficient surety, and if he fails to do so shall commit him to custody.

CHAPTER XXXVII

OF COMMISSIONS FOR THE EXAMINATION OF WITNESSES

Court may issue commission for taking evidence of absent witness.

401. Whenever in the course of an inquiry, trial, or other proceeding under this Code it appears to the court that the examination of a witness is necessary for the ends of justice and that the attendance of such witness cannot be procured without an amount of delay, expense, or inconvenience which under the circumstances of the case would be unreasonable, such court may dispense with such attendance and may after notice to the parties issue a commission to any Magistrate’s Court within the local limits of whose jurisdiction such witness resides to take the evidence of such witness.

Procedure on commission.

402.

(1) The Magistrate’s Court to which the commission is issued shall on receiving the commission summon before it the witness named in the commission; or if from ill-health or other cause his attendance cannot reasonably be procured the Magistrate shall proceed to the place where the witness is.

(2) The evidence of the witness shall be taken down by the Magistrate in the same manner and such Magistrate may for the purpose exercise the same powers as in holding inquiries under this Code.

Parties may forward interrogatories, and accused or his pleader may examine witness.

403.

(1) The parties to any proceeding under this Code in which a commission is issued may respectively forward any interrogatories in writing which the court in which the proceeding has taken place may think relevant to the issue; and the Magistrate taking the examination shall examine the witness upon such interrogatories.

(2) The accused may appear before such Magistrate by pleader or if he is not in custody in person and may examine, cross-examine, and re-examine as the case may be the said witness.

Return of commission.

404. After any commission has been duly executed it shall be returned together with the deposition of the witness examined thereunder to the court out of which it issued and the commission, the return thereto, and the deposition shall be open at all reasonable times to inspection of the parties and may subject to all just exceptions be read in evidence in the case by either party and shall form part of the record.

Adjournment of inquiry or trial.

405. In every case in which a commission is issued under section 401 the inquiry, trial, or other proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

CHAPTER XXXVIII

SPECIAL PROVISIONS RELATING TO EVIDENCE

Deposition of medical and other special witnesses and reports of Government Analyst or Government Radiologists receivable in evidence in certain cases.

406.

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

(2) Where the deposition of any witness is tendered in evidence for the purpose of proving the custody or disposal of any matter or thing forwarded in the course of any inquiry to any public officer for examination or analysis and report or of proving the custody or disposal of any instrument, weapon, matter, or thing used in or about the commission of an offence, or for the purpose of proving the accuracy of a plan or survey made by such witness for the purpose of the case, such deposition if it purports to have been taken and attested by a Magistrate in the presence of the accused may be given in evidence in any inquiry, trial, or proceeding under this Code although the deponent is not called as a witness.


[ 2, 23 of 1945.]

(3) Any document purporting to be a report under the hand of the Government Analyst upon any matter or thing duly submitted to him for examination or analysis and report, or any skiagraph purporting to have been made by a Government Radiologist and any document purporting to be a report under the hand of such Radiologist upon such skiagraph, may be used as evidence in any inquiry, trial, or other proceeding under this Code:


[ 2, 23 of 1945.]

Provided that nothing in this section shall affect the necessity of proving the identity of the subject placed in the Analyst’s hands to be analysed with the subject of which his analysis is needed for the trial of the case, or of proving the identity of the person skiagrapbed by a Radiologist with the person a skiagraph of whom is so needed.

(4) The court may presume that the signature of any such document is genuine and that the person signing it held the office he professed to hold at the time he signed it:


[ 2, 23 of 1945.]

Provided that if in any case the Magistrate is of the opinion that it is necessary or expedient that, or either party to the case requests that the Government medical officer or other medical witness referred to in subsection (1) or the witness referred to in subsection (2) or the Government Analyst or a Government Radiologist referred to in subsection (3) should be present to give evidence at any particular inquiry, trial, or other proceeding to which the deposition or report may refer, such Government medical officer or other medical witness or witness or Government Analyst or Government Radiologist as the case may be shall be summoned as a witness for the purpose of giving evidence in the same manner as the other witnesses for the prosecution.


[ 2, 23 of 1945.]

(5) The court may if it thinks fit summon and examine such deponent or Government Analyst or Government Radiologist as to the subject-matter of his deposition or report, as the case may be.


[ 2, 23 of 1945.]

(6) The deposition of a Government officer taken and attested by a Magistrate in the presence of the accused and deposing to the receipt, custody, or disposal of any document, the validity or identity of which was at no stage in the proceedings challenged by the accused, may be given in evidence in any inquiry, trial, or other proceeding under this Code, although the deponent is not called as a witness, subject to the condition contained in subsection (5) of this section.

Record of evidence in absence of accused.

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

Depositions of Magistrates and Interpreters receivable in evidence in certain cases.


[ 4, 67 of 1938.]

407A. Where, for the purpose of proving any statement made by a deceased person, the Magistrate by whom the statement was recorded and the person, if any, by whom it was interpreted are examined in the course of an inquiry into any offence, the deposition of such Magistrate or of such person, taken and attested by any other Magistrate in the presence of the accused, may be given in evidence at the trial of the accused, although the deponent is not called as a witness:

Provided that-

(1) where the Magistrate who commits the accused for trial is of opinion that it is necessary or expedient, or where either party in the case requests, that any such deponent should be present to give evidence at the trial, such deponent shall be summoned as a witness for the purpose of giving evidence in the same manner as the other witnesses for the prosecution; and

(2) nothing in this section shall affect or be deemed to affect the power of the court of trial to summon and examine such deponent as a witness at any time.

When receivers, &c., charged evidence of other cases allowed.

408. Where proceedings are taken against any person for having received goods knowing them to be stolen or for having in his possession stolen property evidence may be given at any stage of the proceedings that there was found in the possession of such person other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property to be stolen which forms the subject of the proceeding taken against him.

When evidence of previous conviction may be given.

409. Where proceedings are taken against any person for having received goods knowing them to be stolen or for having in his possession stolen property and evidence has been given that the stolen property has been found in his possession, then if such person has within five years immediately preceding been convicted of any offence involving fraud or dishonesty evidence of such previous conviction may be given at any stage of the proceedings and may be taken into consideration for the purpose of proving that the person accused knew the property which was proved to be in his possession to have been stolen:

Provided that not less than seven days’ notice in writing shall have been given to the accused that proof is intended to be given of such previous conviction and it shall not be necessary for the purposes of this section to enter in the indictment the previous conviction of the person so accused.

CHAPTER XXXIX

PROVISIONS AS TO BONDS

Deposit of money instead of bond.

410. When any person is required by any court to execute a bond without sureties such court may, except in the case of a bond for good behaviour, permit him to deposit a sum of money either in current coin or notes to such amount as the court may fix in lieu of executing such bond.

Procedure on forfeiture of bond.

411.

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

(2) If sufficient cause is not shown and the penalty is not paid the court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable or immovable property belonging to such person.

(3) Such warrant may be executed within the local limits of the jurisdiction of the court which issued it and it shall authorize the distress and sale of any movable or immovable property belonging to such person without such limits when endorsed by the District Judge or Magistrate within the local limits of whose jurisdiction such property is found.

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

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

Power of Fiscal to execute conveyance to purchaser.

411A. Whenever immovable property has been sold under the provisions of this Chapter it shall be lawful for the Fiscal under whose direction the attachment and sale was carried out to execute a conveyance in favour of the purchaser, and a conveyance so executed shall vest the property sold in the purchaser in like manner as if such conveyance had been executed by the person against whom the warrant for the attachment and sale of such immovable property was issued.

Power to direct levy of amount due on recognizances.

412. The Supreme Court or a District Court may direct any Magistrate to levy the amount due on a bond to appear and attend at such Supreme Court or District Court.

CHAPTER XL

OF THE DISPOSAL OF PROPERTY THE SUBJECT OF OFFENCES

Order for disposal of property regarding which offence committed.

413.

(1) When an inquiry or trial in any criminal court is concluded the court may make such order as it thinks fit for the disposal of any document or other property produced before it regarding which any offence appears to have been committed or which has been used for the commission of any offence.

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

(3) When an order is made under this section in a case in which an appeal lies such order shall not (except when the property is live stock or is subject to speedy and natural decay) be carried out until the period allowed for presenting such appeal has passed, or when such appeal is presented within such period until such appeal has been disposed of.

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

In lieu of order property-may be sent to Magistrate for disposal.

414. In lieu of making an order under the last preceding section the Supreme Court or a District Court may direct the property to be delivered to a Magistrate, who shall in such cases deal with it as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned.

Payment to innocent purchaser of money found on accused.

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

Stay of order under this Chapter.

416. The Supreme Court may direct any order under the foregoing sections of this Chapter made by a District or Magistrate’s Court to be stayed pending consideration by the Supreme Court and may modify, alter, or annul such order.

Destruction of libellous and other matters.

417.

(1) On a conviction under sections 285, 286, 481, or 482 of the Penal Code the court may order the destruction of all the copies of the thing in respect of which the conviction was had and which are in the custody of the court or remain in the possession or power of the person convicted.

(2) The court may in like manner on a conviction under sections 265, 266, 267, or 268 of the Penal Code order the food, drink, drug, or medical preparation in respect of which the conviction was had to be destroyed.

Power to restore possession of immovable property.

418.

(1) Whenever a person is convicted of an offence attended by criminal force and it appears to the court that by such force any person has been dispossessed of any immovable property, the court may if it thinks fit order such person to be restored to the possession of the same.

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

Procedure by notice upon seizure of property taken under section 29, or stolen.

419.

(1) The seizure by any police officer of property taken under section 29 or alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained respecting the custody and production of such property.

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

(3) Such notification shall be published in the Gazette if the value of the property amounts to one hundred rupees.

Procedure where no claimant appears within six months.

420.