Criminal Procedure and Evidence Code
Act 36 of 1967
An Act to provide for the law relating to procedure and evidence in criminal proceedings and for incidental matters
Part I – Preliminary
1. Short title
(1)This Act may be cited as the Criminal Procedure and Evidence Code.(2)This Act is hereinafter referred to as "this Code".2. Interpretation
In this Code, unless the context otherwise requires—"arrestable offence" means an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant;"character" includes reputation and disposition;"complaint" means an allegation that some person known or unknown has committed an offence;"court" means the High Court and any subordinate court;"document" means anything in or on which information of any description is recorded, and includes—(a)anything in or on which there is writing;(b)anything is or on which there are marks, figures, symbols or perforations having meaning for a person qualified to interpret them;(c)anything from which sounds, images or writing can be produced, with or without the aid of anything else;(d)a map, a plan, drawing, photograph or similar thing;(e)any disc, tape, soundtrack or other device on which sounds or other data, not being visual images, are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom; and(f)any film, negative, tape or other device on which one or more visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom;"evidence" means information of any description which facts tend to be proved, and includes—(a)oral evidence, that is to say all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and(b)documentary evidence, that is to say all documents produced for the inspection of the court;"fact" includes—(a)any thing, state of things, or relation to things capable of being perceived by the senses; and(b)any mental condition of which any person is conscious;"fact in issue" means any fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any proceeding necessarily follows;"mental hospital" bears the meaning ascribed to that term in section 2 of the Mental Treatment Act;"non-arrestable offence" means an offence for which a police officer requires a warrant to make an arrest;"police officer in charge of a police station" means the senior police officer on duty at a police station at the time in question;"police station" means any post or place appointed by the Inspector General to be a police station;"preliminary inquiry" means an inquiry into a criminal charge held by a subordinate court with a view to the committal of the accused person for trial before the High Court;"proclaimed person" or "proclaimed offender" means any person in respect of whom a proclamation has been published under section 106;"Public Prosecutor" means the Director of Public Prosecutions, or, subject to his or her general or special instructions or to an Act of Parliament—(a)persons in the public service acting as his or her subordinates; or(b)such other legally qualified persons acting on instructions from the Director of Public Prosecutions;"Registrar" means the Registrar of the High Court and includes a deputy Registrar and an Assistant Registrar;"Resident Magistrate" means a Resident Magistrate appointed under section 111 of the Constitution;"subordinate court" means any court of a magistrate or any other court subordinate to the High Court;"summary committal procedure" means the procedure provided for in Part IX - for the committal of an accused person by a subordinate court for trial before the High Court without the necessity for holding or completing a preliminary inquiry;"summary trial" means a trial by a subordinate court under Part VII;"Sunday" includes Saturday and public holiday;"traditional or local court" means a traditional or local court provided for under section 110 of the Constitution.
3. Principle on which Code is to be applied
The principle that substantial justice should be done without undue regard for technicality shall at all times be adhered to in applying this Code.
4. Finding, etc., not to be set aside merely because proceedings in wrong place
No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings, in the course of which it was arrived at or passed, took place in a wrong Region, District or other local area, unless it appears that such error has in fact occasioned a failure of justice.
5. Finding, etc., not to be reversed, etc. on account of errors not occassioning failure of justice
(1)Subject to section 3 and to the other provisions of this Code, no finding arrived at, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal of complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code unless such error, omission or irregularity has in fact occasioned a failure of justice.(2)In determining whether any error, omission or irregularity has occasioned a failure of justice the court shall consider the question whether the objection could and should have been raised at an earlier stage in the proceedings.(3)The important admission or rejection of evidence shall not, of itself, be a ground for the reversal or alteration of any decision in any case unless, in the opinion of the court before which an objection is raised—
(a)the accused would not have been convicted if such evidence had not been given or if there was no other sufficient evidence to justify the conviction; or(b)it would have varied the decision if the rejected evidence had been received.
6. Trial of offences under Penal Code and other laws
(1)Subject to any Act of Parliament establishing traditional or local courts, all offences under the Penal Code shall be inquired into and otherwise dealt with in accordance with this Code.(2)All offences under any other written law shall be inquired into, tried, and otherwise dealt with according to this Code, subject, however, to any enactment for the time being in force regulating the manner or place of inquiring into, trying or otherwise dealing with such offences.Part II – Powers of courts and special areas
7. Offences under Penal Code
Subject to the other provisions of this Code, any offence under the Penal Code may be tried by the High Court.
9. Offences under laws other than Penal Code
(1)Any offence under any law other than the Penal Code shall, where any court is mentioned in that law or any other written law as having jurisdiction to try that offence, be tried by such court.(2)Where no court is so mentioned, the offence may, subject to the other provisions of this Code, be tried by the High Court, by any subordinate court or by any traditional or local court of competent jurisdiction.10. Sentences and orders which High Court may pass
The High Court may pass any sentence or order authorized by law.
11. Power of certain courts to pass sentence of imprisonment for protection of public
Where a person, who is not less than twenty-one years of age—
(a)is convicted by the High Court or by a Resident Magistrate’s court or by a court of a magistrate of the first grade of an offence punishable with imprisonment for a term of five years or more; and(b)has been convicted on at least three previous occasions, since he attained the age of eighteen years, of offences punishable with imprisonment for a term of five years or more; and(c)has been sentenced on at least two previous occasions to imprisonment, other than a suspended sentence which has not taken effect,
the court may, if satisfied that it is expedient for the protection of the public that he should be detained in custody for a substantial time, pass, in lieu of any other sentence, a sentence of imprisonment for a term of not less than five nor more than fourteen years, as the court may determine.
12. Combination of sentences
Subject to section 14 any court may pass any lawful sentence combining any of the sentences which it is authorized by law to pass.
13. General jurisdiction of subordinate courts
(1)A Resident Magistrate court and any court of a magistrate of the first or second grade may try any offence under the Penal Code or any other law other than—
(a)offences under sections 38, 39, 63, 208, 209 and 217 of the Penal Code; and(b)attempts to commit or aiding, abetting, counselling or procuring the commission of any of the offences specified in paragraph (a).(2)Notwithstanding subsection (1), offences under sections 133, 134 and 138 of the Penal Code shall not be tried by any court of the second grade magistrate.(3)A court of the third grade magistrate may try any offence specified in the Second Schedule in respect of which the maximum sentence does not exceed the jurisdiction conferred on such court under section 14 (3).(4)A court of a magistrate of the fourth grade may try any offence specified in the Third Schedule in respect of which the maximum sentence does not exceed the jurisdiction conferred on such court under section 14 (3).(5)The Chief Justice may by notice published in the Gazette amend the Second Schedule and the Third Schedule.14. Sentences which subordinate courts may pass
(1)A Resident Magistrate’s court may pass any sentence, other than a sentence of death or a sentence of imprisonment for a term exceeding twenty-one years, authorized by the Penal Code or any other written law.(2)A court of a magistrate of the first grade magistrate may pass any sentence, other than a sentence of death or a sentence of imprisonment for a term not exceeding fourteen years, authorized by the Penal Code or any other written law.(3)A court of a magistrate of the second grade may pass a sentence of imprisonment for a term not exceeding ten years or a fine not exceedingK200,000 or both.(4)A court of a magistrate of—
(a)the third grade may pass a sentence of imprisonment for a term not exceeding three years or a fine not exceeding K150,000 or both; and(b)the fourth grade may pass a sentence of imprisonment for a term not exceeding twelve months or a fine not exceeding K100,000 or both.(5)In addition to the powers conferred upon them by subsections (3) and (4), courts of magistrate of the second, third and fourth grade may also pass any sentence authorized by section 25 (5), (6), (7), (8) and (9) of the Penal Code .(6)Where in a trial by a subordinate court a person is convicted of an offence, if the court is of the opinion that greater punishment should be inflicted for the offence than it has power to inflict, the court may, for reasons to be recorded in writing on the record of the case, instead of dealing with him in any other manner, commit him to the High Court or to another subordinate court of higher grade than itself for sentence.(7)A court committing a convicted person for sentencing by the High Court or another subordinate court of higher grade under subsection (6) shall, until sentence is passed, either admit him to bail or send him to prison for safekeeping, and the warrant of the subordinate court shall be sufficient authority to the officer in charge of any prison appointed for the custody of any prisoner committed for trial.(8)Any person committed to the High Court or to another subordinate court for sentence under this section shall be brought before the Court to which he has been committed at the first convenient opportunity, and in any event not later than fourteen days; but failure to bring the accused before a higher court within the specified period shall not itself invalidate the proceedings.(9)Where any person is brought for sentence before the High Court or a subordinate court in accordance with subsection (8), the High Court or the subordinate court, as the case may be, shall inquire into the circumstances of the case and shall thereafter proceed as if such person has been convicted by it of the offence in respect of which he has been committed.(10)Notwithstanding subsection (6), where a person has been committed for sentence under that subsection and has appealed against his conviction, he shall be brought before the High Court for sentence at the time when such appeal is to be determined by the High Court, and where the appeal is dismissed or the finding altered, he shall thereupon be sentenced by the High Court.(11)Where the High Court, on appeal against conviction, alters the finding, such person shall be deemed to be committed for sentence to the High Court on the offence found by the High Court to have been committed by such person.15. Certain sentences to be confirmed on review by High Court before being given effect, etc.
(1)Where in any proceedings a subordinate court imposes—
(a)a fine exceeding "K1,000";(b)Any sentence of imprisonment exceeding
(i)in the case of a Resident Magistrate’s court, two years;(ii)in the case of a Magistrate’s court of the first or second grade, one year; or(iii)in the case of a court of a magistrate of the third or fourth grade, six months;(c)any sentence of imprisonment upon a first offender which is not suspended under section 340,it shall immediately send the record of the proceedings to the High Court for the High Court to exercise powers of review under Part XIII.
(2)No person authorized by warrant or order to levy any fine falling within subsection (1) (b), and no person authorized by any warrant for the imprisonment of any person in default of the payment of such fine, shall execute or carry out any such warrant order until he has received notification from the High Court that it has in exercise of its powers of appeal or review confirmed the imposition of such fine.(3)An officer in charge of a prison or other person authorized by a warrant of imprisonment to carry out any sentence of imprisonment failing within subsection (1) (c) (i), (ii) or (iii) shall treat such warrant as though it had been issued in respect of a period of two years, one year or six months respectively, as the case may be, until such time as he shall receive notification from the High Court that it has in exercise of its powers of appeal or review confirmed that such sentence may be carried out as originally imposed.(4)Nothing in this section shall affect or derogate from the powers of the High Court to reverse, set aside, alter or otherwise deal with any sentence of a subordinate court on review or appeal.(5)When a subordinate court has passed a sentence or made an order falling within subsection (1) it shall endorse on the warrant or order that the sentence or order is one required to be submitted to the High Court for review and which part if any of the sentence or order may be treated as valid and effective pending such review.(6)In this section "sentence of imprisonment" means a substantive sentence of imprisonment or a sentence of imprisonment in default of payment of fine, costs or compensation or a combination of such sentences and includes a sentence of imprisonment the operation of which is suspended under section 339.16. Release on bail pending order of the High Court
(1)If a subordinate court imposes a sentence falling within section 15 (1) (c) or (d) the court imposing such sentence may on the application of the person sentenced release the person sentenced on bail pending the order of the High Court.(2)If the person sentenced is released on bail under subsection (1), the term of imprisonment shall run from the date upon which such person begins to serve his sentence after confirmation by or other order of the High Court.17. Sentences in cases of conviction of several offences at one trial
(1)Where a person is convicted at one trial of 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 impose; such punishments, when consisting of imprisonment, to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.(2)In the case of consecutive sentences it shall not be necessary for the court, by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to impose on conviction of a single offence, to send the offender for trial before a higher court.(3)The aggregate of any terms of consecutive sentences of imprisonment imposed under subsection (2) by a—
(a)Resident Magistrate, shall not exceed twenty-one years;(b)magistrate of the first grade, shall not exceed fourteen years;(c)magistrate of the second grade, shall not exceed ten years;(d)magistrate of the third grade, shall not exceed four years; and(e)magistrate of the forth grade, shall not exceed two years.(4)For the purpose of appeal or review the aggregate of consecutive sentences imposed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.18. Appointment of special areas
The President, in his discretion, may by order direct that any area in Malaŵi shall be a special area for the purposes of this Code.
19. Magisterial powers to officers in charge of special areas
The Minister may by notice published in the Gazette confer upon any officer in charge of a special area all or any of the powers conferred or conferrable on a magistrate of the first, second, or third grade.
Part III – General provisions
20. Arrest, how made
(1)In making an arrest a police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested, and shall inform the person that he is under arrest.(2)Where the person to be arrested submits to the custody by word or action, the arrest shall be effected by informing the person that he is under arrest.(3)If the person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.(4)This section shall not justify the use of a greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.20A. Information to be supplied on arrest
(1)Subject to subsection (5), where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest at the time of the arrest or as soon as is practicable after his arrest.(2)Where a person is arrested by a police officer, subsection (1) applies regardless of whether the fact of the arrest is obvious.(3)Subject to subsection (5), no arrest is lawful unless the person arrested is informed of the reason for the arrest at the time of, or as soon as is practicable after, the arrest.(4)Where the person is arrested by a police officer, subsection (3) applies regardless of whether the reason for the arrest is obvious.(5)Nothing in this section shall be deemed to require a person to be informed—
(a)that he is under arrest; or(b)of the reason for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.
(6)Where the person is arrested, the police officer shall promptly inform him that he has the right to remain silent, and shall warn him of the consequences of making any statement, but any omission by the police officer to inform the arrested person of this right shall not render the arrest unlawful.20B. Voluntary attendance at police station
Where, for the purpose of assisting with an investigation, a person attends voluntarily at a police station or at any other place where a police officer is present or accompanies a police officer to a police station or any other such place without having been arrested—
(a)he shall be entitled to leave at will, unless he is placed under arrest; and(b)if he is placed under arrest, section 20A shall apply.
20C. Arrest for further offence
Where a person has been arrested for an offence and is in custody in consequence of that arrest, and it appears to the police officer that if the person were released from that arrest he would be liable to arrest for some other offence, he shall be arrested for that other offence.
20D. Additional rights of children and young persons under arrest
(1)Where a child or a young person is arrested, such steps as are necessary shall be taken to ascertain the identity of a person responsible for his welfare.(2)The person identified under subsection (1) shall be informed of the following—
(a)that the child or young person has been arrested;(b)the reasons for his arrest; and(c)the place where he is being held.(3)The information under subsection (2) shall be given as soon as is practicable to do so.(4)For purposes of this section, the persons who may be responsible for the welfare of the child or young person are—
(a)his parent or guardian;(b)any other person or organization that has for the time being assumed responsibility for his welfare.(5)If at the time of the arrest it appears that a supervision order as provided for under section 16 (1) (e) of the Children and Young Persons Act is in force in respect of the child or young person, the person responsible for his supervision shall also be informed as soon as it is reasonably practicable to do so as is described under subsection (2).21. Search of place entered by person arrested
(1)If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into or is within any place, the person residing in or being in charge of such place shall, on demand of such person acting as aforesaid or such police officer, allow him free entry thereto and afford all reasonable facilities for a search therein.(2)If entry to the place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant or for a police officer where a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, to enter the place and search therein.(3)In order to effect an entrance under subsection (2), the police officer may break open an outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority or purpose, and demand of admittance duly made, he cannot otherwise obtain admittance.22. Powers to break open doors and windows for purposes of liberation
Any police officer or other person authorized to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.
23. No unnecessary restraint
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
24. Search of arrested persons
(1)Whenever a person is arrested—
(a)by a police 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)without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail,the police officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested may search such person and place in safe custody all articles, other than necessary wearing apparel and shoes, found upon him.
(2)In addition to the power to search an arrested person conferred under subsection (1), the police officer shall have power in any such case—
(a)to search the arrested person for anything which—
(i)may present a danger to himself or others;(ii)he might use to assist himself escape from lawful custody;(iii)may afford evidence of the commission or suspected commission of an offence whether within Malaŵi or elsewhere; or(iv)is intended to be used, or is on reasonable grounds believed to be intended to be used, in the commission of an offence within Malaŵi or elsewhere;(b)to enter and search any premises in which the person was when arrested or immediately before the arrest for evidence relating to the offence for which he has been arrested.(3)A police officer may not search a person in the exercise of the power conferred by subsection (2), unless he has reasonable grounds for believing that the person to be searched may have concealed on him anything for which a search is permitted under that subsection.(4)The power to search conferred under subsection (2) is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.24A. Entry and search after arrest
(1)Any police officer may enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence, if he has reasonable grounds for suspecting that there is on the premises evidence that relates to that offence or to some other arrestable offence which is connected with or similar to that offence.(2)The police officer may seize and retain anything for which he may search under subsection (1).(3)The power to search under subsection (1) is only a power to search to the extent that is reasonably required for the purpose of discovering such evidence.(4)Subject to subsection (5), the powers conferred by this section may not be exercised unless a search warrant has been issued in respect of the premises.(5)A police officer may conduct a search under subsection (1) before taking the person to a police station and without a search warrant if the presence of that person at a place other than a police station is necessary for the effective investigation of the offence.(6)If the premises consist of two or more separate dwellings, the police officer may search—
(a)any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and(b)any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.(7)If the person who was in occupation or control of the premises at the time of the search is in police detention at the time the record is to be made, the police officer shall make the record as part of his custody record.(8)For the purposes of this section "premises" includes any—
(a)vehicle, vessel, aircraft or hovercraft;(b)offshore installation; and(c)tent or movable structure.
25. Power of police officer to search and detain aircraft, vessel or vehicle and persons in certain circumstances
(1)Any police officer, or other person authorized in writing by the Inspector General of Police, may stop search and detain—
(a)any aircraft, vessel or vehicle in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found;(b)any aircraft, vessel or vehicle which there shall be reason to suspect has been used or employed in the commission, or to facilitate the commission, of any offence under Chapters XXVI, XXVIII, or XXIX or section 328 of the Penal Code ; or(c)any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained, and, where anything is found for which such search is being made, may seize such thing.(2)No person shall be entitled to any damages or compensation for any loss of damage suffered by him in respect of the detention under this section of any aircraft, vessel or vehicle or of the seizure of anything found and seized under this section except where the police officer or authorized person acted without reasonable cause.(3)For the purpose of this section the expressions "aircraft", "vessel" and "vehicle" respectively, include everything contained in, being on, or attached to any aircraft, vessel or vehicle, as the case may be, which forms part of the equipment of such aircraft, vessel or vehicle.26. Mode of search of women and men
(1)Whenever it is necessary to search a woman, the search shall be made by another woman with strict regard to decency.(2)Whenever it is necessary to search a man, the search shall be made by another man with strict regard to decency.(3)The powers to search a person shall not be construed as authorizing a police officer to require a person—
(a)to remove any necessary wearing apparel in public;(b)to remove any unnecessary wearing apparel in public where it will be unnecessary to do so.
27. Power to seize offensive weapons
The officer or other person making any arrest may take from the person arrested any offensive weapon which he has about his person, and shall deliver all weapons so taken to a court or the officer before whom the officer or person making the arrest is required by law to produce the person arrested.
28. Arrest by police officer without warrant
Any police officer may, without an order from a magistrate and without a warrant, arrest—
(a)any person whom he suspects upon reasonable grounds of having committed an arrestable offence;(b)any person who commits a breach of the peace in his presence;(c)any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;(d)any person who has been proclaimed as an offender under section 106;(e)any person whom he suspects upon reasonable grounds of being a deserter from the Defence Force of Malaŵi and the Malaŵi Police Service;(f)any person whom he finds lying or loitering in any highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;(g)any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of Malaŵi which, if committed in Malaŵi, would have been punishable as an offence and for which he is under any written law liable to be apprehended and detained in Malaŵi;(h)any person having in his possession without lawful excuse, the burden of providing which excuse shall lie on such person, any implement of housebreaking;(i)any released convict committing a breach of any provision prescribed by section 343 or of any rule made thereunder;(j)any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing;(k)any person for whom he has reasonable cause to believe a warrant of arrest has been issued; and(l)any person who is about to commit an arrestable offence or whom he has reasonable grounds for suspecting to be about to commit an arrestable offence.
29. Arrest of vagabonds, habitual robbers, etc
Any police officer may without an order from a magistrate and without a warrant, arrest or cause to be arrested—
(a)any person found taking precautions to conceal his presence within the limits of an area policed from a police station under circumstances which afford reason to believe that he is taking such precautions with a view to committing an arrestable offence;(b)any person within the limits of such station who cannot give a satisfactory account of himself; and(c)any person who is by repute a habitual robber, house-breaker or thief or a habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion or in order to facilitate the committing of extortion habitually puts or attempts to put persons in fear of injury.
30. Procedure when police officer deputes subordinate to arrest without warrant
When any police officer of the rank of inspector or above requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.
31. Refusal to give name and residence
(1)When any person who in the presence of a police officer has committed or has been accused of committing a non-arrestable offence refuses on the demand of such officer to give his name and residence, or gives a name and residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained.(2)When the true name and residence of such person have been ascertained he shall be released on his executing a bond, with or without sureties, to appear before a magistrate or traditional or local court if so required.(3)Where any person arrested under this section is not resident in Malaŵi, the bond shall be secured by a surety or sureties resident in Malaŵi.(4)Should the true name and residence of such person not be ascertained within forty-eight hours from the time of arrest or should be fail to execute the bond or, if so required, to furnish sufficient sureties, he shall immediately be forwarded to the nearest magistrate or tradition or local court having jurisdiction in the case.(5)Any police officer may arrest without a warrant any person who has committed a non-arrestable offence in his presence if reasonable grounds exist for believing that he could not be found or made answerable to justice unless he is arrested immediately.32. Disposal of persons arrested by police officers
A police officer making an arrest without a warrant shall, without unnecessary delay and in any event not later than forty-eight hours, or if the period of forty-eight hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, take or send the person arrested before a magistrate or traditional or local court having jurisdiction in the case.
32A. Powers to release and caution by the police
(1)For any offence not amounting to a serious offence and not aggravated in degree, a police officer of the rank of sub-inspector and above may, orally or in writing, caution an arrested person against repetition of criminal conduct and then release him.(2)A person arrested for an offence under subsection (1) may be cautioned and then released where there is enough evidence to warrant a prosecution if he voluntarily admits having committed the alleged offence.(3)A child offender who voluntarily admits the commission of an offence under subsection (1) may be released on caution if his parent or guardian consents to disposal of the case in this manner and if the caution is administered in the presence of such parent or guardian.(4)In exercising the discretion whether to caution and release a person arrested for an offence under this section, the police officer entitled to exercise of this power shall, inter alia, bear in mind—
(a)the petty nature of the offence;(b)the circumstances in which it was committed;(c)the views of the victim or complainant; and(d)the personal consideration of the arrested person, including age and physical or mental infirmity, and in the case of a child his general character and family circumstances.(5)The Chief Justice may by rules issue guidelines to the police on the exercise of the powers referred to in this section.33. Arrest by a private person
(1)Any private person may without a warrant, arrest anyone—
(a)who is in the act of committing an arrestable offence;(b)whom he has reasonable grounds for suspecting to be committing an arrestable offence;(c)whom he reasonably suspects of having committed a serious offence;(d)who has been proclaimed an offender under section 106.(2)Persons found committing an offence involving damage to property may be arrested without a warrant by the owner of the property or his servants or persons authorized by him.34. Disposal of person arrested by private person
(1)Any private person arresting any person without a warrant shall without unnecessary delay make over the person so arrested to a police officer, or in the absence of a police officer shall take such person to the nearest police station.(2)If there is reason to believe that the arrested person comes under section 28, a police officer shall arrest him.(3)If there is reason to believe that the arrested person has committed a non-arrestable 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, he shall be dealt with under section 31.(4)If there is no sufficient reason to believe that the arrested person has committed any offence, he shall be released immediately.35. Detention of persons arrested without warrant
(1)When any person has been taken into custody without a warrant for an offence, other than an offence punishable with death, the police officer in charge of the police station to which such person shall be brought may, in any case, and shall—
(a)if it does not appear practicable to bring such person before a subordinate court or a traditional or local court having jurisdiction to try such offence within forty-eight hours after he was so taken into custody, inquire into the case; and(b)unless the offence appears to the officer to be of a serious nature, release the person on his executing a bond, with or without sureties, for a reasonable amount to appear before a subordinate court or traditional or local court having jurisdiction at the time and place to be named in the bond.(2)When the person is detained in custody he shall be brought before a subordinate court or traditional or local court having jurisdiction as soon as practicable and in any event not later than forty-eight hours after the arrest, or if that period expires outside ordinary court hours or on a day which is not a court day, the first court day after expiry.(3)A police officer in charge of a police station may release a person arrested on suspicion on a charge of committing any offence when, after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with the charge.36. Police to report apprehensions
Police officers in charge of police stations shall report to the nearest magistrate the cases of all persons arrested within the limits of their respective areas, whether such persons have been admitted to bail or otherwise.
37. Offence committed in magistrate’s presence
When any offence is committed in the presence of a magistrate 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.
38. Arrest by magistrate
Any magistrate may at any time arrest or direct the arrest in his presence of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.
39. Recapture of person escaping
If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may immediately pursue and arrest him in any place in Malaŵi.
40. Provisions of sections 21 and 22 to apply to arrests under section 39
Sections 21 and 22 shall apply to arrest under section 39 although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.
41. Assistance to magistrate or police officer
Every person is bound to assist a magistrate or police officer reasonably demanding his aid—
(a)in the taking or preventing the escape of any other person whom such magistrate or police officer is authorized to arrest;(b)in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any buoy, mark used in navigation, air-service, electricity supply, railway, telegraph or any public land-mark road, property or utility.
42. Security for keeping the peace
(1)Where a Resident Magistrate or a magistrate of the first or second grade is informed on oath that any person is likely—
(a)to commit a breach of the peace or disturb the public tranquility; or(b)to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility,the magistrate may, in the manner hereafter provided, require such person to show cause why he should not execute a bond, with or without sureties, for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit to fix.
(2)Where any magistrate not empowered to proceed under subsection (1) or a traditional or local court has reason to believe that—
(a)any person is likely to commit a breach of the peace or disturb the public tranquility, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility;(b)the breach of the peace or disturbance cannot be prevented otherwise than by detaining such person in custody,such magistrate or traditional or local court may, after recording his or its reasons, issue a warrant for the arrest of such person, if he is not already in custody or before the magistrate or traditional or local court, and may send him before a magistrate empowered to deal with the case with a copy of his or its reasons.
43. Security for good behaviour from persons disseminating seditious matters, etc.
Where a Resident Magistrate or a magistrate of the first or second grade has information that there is any person who either orally or in writing or in any other manner, disseminates or attempts to disseminate, or in any wise abets the dissemination of—
(a)any seditious matter, that is to say, any matter the publication of which is punishable under section 51 of the Penal Code ; or(b)any matter concerning a judge or magistrate which amounts to libel under the Penal Code ,
such magistrate may, in the manner provided in this Code, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the magistrate thinks fit to fix.
44. Security for good behaviour from vagrants and suspected persons
Where a Resident Magistrate or a magistrate of the first or second grade receives information—
(a)that any person is taking precautions to conceal his presence and that there is reason to believe that such person is taking such precautions with a view to committing any offence; or(b)that there is a person who has no visible means of subsistence, or who cannot give a satisfactory account of himself,
such magistrate may, in the 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 one (1) year, as the magistrate thinks fit to fix.
45. Security for good behaviour from habitual offenders
Where a Resident Magistrate or a magistrate of the first or second grade receives information that any person—
(a)is by habit a robber, house-breaker or thief; or(b)is by habit a receiver of stolen property, knowing the same to have been stolen; or(c)habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property; or(d)habitually commits or attempts to commit, or aids or abets in the commission of, any offence punishable under Chapters XXXI, XXXIV or XXXVII of the Penal Code ; or(e)habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or(f)is so desperate and dangerous as to render his being at large without security hazardous to the community,
such magistrate may, in the manner hereinunder 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 three (3) years, as the magistrate thinks fit to fix.
46. Order to be made
Where a magistrate acting under section 42, 43, 44 or 45 deems it necessary to require any person to show cause under any such section, he shall make an order in writing setting forth—
(a)the substance of the information received;(b)the amount of the bond to be executed;(c)the term of which it is to be in force; and(d)the number, character and class of sureties, if any, required.
47. Procedure in respect of person present in court
If the person in respect of whom an order is made under section 46 is present in court, it shall be read over to him and the substance thereof shall be explained to him.
48. Summons or warrant in case of person not so present
(1)If such person is not present in court, the magistrate shall issue a summons requiring him to appear, or, when the person in respect of whom an order is made under section 46 is in custody, a warrant directing the officer in whose custody he is to bring him before the court.(2)Where it appears to the magistrate, upon the report of a police 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 the person, the magistrate may at any time issue a warrant for his arrest.49. Copy of order under section 46 to accompany summons or warrant
Every summons or warrant issued under section 48 shall be accompanied by a copy of the order made under section 46, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the summons or warrant.
50. Power to dispense with personal attendance
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 legal practitioner.
51. Inquiry as to truth of information
(1)When an order under section 46 has been read or explained under section 47 to a person present in court, or when any person appears or is brought before a magistrate in compliance with or in execution of a summons or warrant issued under section 48, the magistrate shall proceed to inquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary.(2)The inquiry under subsection (1) shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in trials before sub-ordinate courts.(3)For the purpose of this section the fact that the person is a habitual offender may be proved by evidence of general repute or otherwise.(4)Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the magistrate thinks just.52. Order to give security
(1)If upon an inquiry held under section 51 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 that—
(a)no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 46;(b)the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; and(c)if the person in respect of whom the inquiry is made is under the age of eighteen years, the bond shall be executed only by his sureties.(2)Any person ordered to give security under this section may appeal to the High court, and the provisions of Part XIII relating to appeals shall apply to every such appeal.53. Conditions of bonds
Where any person is required by any court to execute a bond, with or without sureties, and in such bond the person executing it binds himself to keep the peace or binds himself to be of good behaviour, the court may require that there shall be included in such bond one or more of the following conditions—
(a)a condition that such person shall remain under the supervision of some other person named in the bond during such period as may be specified therein;(b)such conditions for securing such supervision as the court may think it desirable to impose; and(c)such conditions with respect to residence, employment, associations, abstention from intoxicating liquor or with respect to any other matter whatsoever as the court may think desirable to impose.
54. Discharge of person informed against
If on an inquiry under section 51 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.
55. Commencement of period for which security is required
(1)If any person in respect of whom an order requiring security is made under section 46 or section 52, is, at the time such order is made, sentenced to or undergoing a sentence of imprisonment, the period for which such security is required shall commence on the expiration of such sentence.(2)In other cases such period shall commence on the date of such order unless the magistrate, for sufficient reason, fixes a later date.56. Contents of bond
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 aiding, abetting, counselling, or procuring the commission of any offence punishable with imprisonment, wherever it may be committed, shall be a breach of the bond.
57. Power to reject sureties
A magistrate may refuse to accept any surety offered under any of the provisions of this Part on the ground that, for reasons to be recorded by the magistrate, such surety is an unfit person.
58. Procedure on failure of person to give security
(1)If any person ordered to give surety under section 52 does not give such surety on or before the date on which the period for which such security is to be given commences, the magistrate who made the order shall, except in the case mentioned in subsection (2), issue a warrant directing him to be detained in prison until such period expires or until within such period he gives the required security.(2)When such person has been ordered to give security for a period exceeding one year, the magistrate who made the order shall, if such person does not give such security, issue a warrant directing him to be detained in prison pending the orders of the High Court, and the proceedings shall forthwith be forwarded to such Court.(3)The High Court, after examining such proceedings and requiring from the magistrate any further information or evidence which it thinks necessary, may make such order in the case as it thinks fit.(4)The period, if any, for which any person is imprisoned for failure to give security shall not exceed one year.(5)If the security is rendered to the officer in charge of the prison, he shall forthwith refer the matter to the magistrate who made the order and shall await the orders of such magistrate.(6)Imprisonment for failure to give security for keeping the peace shall be without hard labour.(7)Imprisonment for failure to give security for good behaviour may be with or without hard labour as the magistrate or the High Court in each case directs.59. Power to release persons imprisoned for failure to give security
Where a Resident Magistrate or a magistrate of the first or second grade is of the opinion that any person imprisoned for failing to give security may be released without hazard to the community, such magistrate shall make an immediate report of the case for the orders of the High Court, and such Court may, if it thinks fit, order such person to be discharged.
60. Power of High Court to cancel bond
The High Court may at any time, for sufficient reason to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under any of the preceding sections of this Part by order of any court.
61. Discharge of sureties
(1)Any surety for the peaceable conduct or good behaviour of another person may at any time apply to a Resident Magistrate or a magistrate of the first or second grade to cancel any bond executed under any of the provisions of this Part.(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)Where 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; and every such order shall for the purposes of sections 56, 57, 58 and 59 be deemed to be an order made under section 52.62. Police to prevent arrestable offences
Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability prevent, the commission of any arrestable offence.
63. Information of design to commit such offences
Every police officer receiving information of a design to commit any arrestable offence shall communicate any such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.
64. Arrest to prevent such offences
A police officer knowing of a design to commit any arrestable 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 otherwise be prevented.
65. Prevention of injury to public property, etc.
A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any things mentioned in section 41 (b).
Part IV – Provisions relating to all criminal proceedings
66. General authority of courts of Malaŵi
Every court has authority to cause to be brought before it any person who is in Malaŵi and is charged with an offence committed within Malaŵi or partly within and partly beyond Malaŵi or which according to law may be dealt with by it and to deal with the accused person according to its jurisdiction.
67. Powers of High Court
The High Court may inquire into and try any offence subject to its jurisdiction at any place within Malaŵi:Provided that—
(a)except where the High Court, for any special reason (to be recorded on the minutes of the proceedings), shall otherwise direct, no criminal case shall be brought under the cognizance of the High Court, unless the case shall have been previously investigated by a subordinate court, and the accused person shall have been committed for trial before the High Court, or unless the accused person has been committed for trial by summary committal procedure;(b)a charge may be signed and filed in respect of any offence founded on the facts disclosed in the despositions or in respect of any offence whatsoever where the accused person has been committed for trial by summary committal procedure.
68. Place and date of sessions of the High Court
(1)For the exercise of its original criminal jurisdiction the High Court shall hold sittings at such places and on such days as the Chief Justice may direct.(2)The Registrar of the High Court shall ordinarily give notice beforehand of all such sittings.69. Ordinary place of inquiry and trial
Subject to section 67 and to the powers of transfer conferred by sections 74 and 75 every offence shall ordinarily—
(a)be tried by the traditional or local court, if any, having jurisdiction in the case in question within the local limits of whose jurisdiction the offence was committed or the accused was apprehended or is in custody on a charge for the offence; or(b)be inquired into or tried by the subordinate court nearest to the place at which the offence took place, or where the accused was apprehended or is in custody or has appeared in answer to a summons lawfully issued charging the offence.
70. High Court to decide in cases of doubt
(1)Where any doubt arises as to the subordinate court by which any offence should be inquired into or tried, any subordinate court entertaining such doubt may, in its discretion, report the circumstances to the High Court.(2)Upon receiving a report under subsection (1), the High Court shall decide by which court the offence shall be inquired into or tried, and any such decision of the High Court shall be final and conclusive, except that it shall be open to an accused to show that no court in Malaŵi has jurisdiction in his case.71. Court to be open and may be held on a Sunday
(1)All proceedings under this Code shall, except as otherwise expressly provided by any law for the time being in force, be carried on in an open court to which the public generally may have access:Provided that—
(a)any court shall have power to hear any inquiry or trial or any part thereof, in closed court and to exclude any particular person from the court, if, in the opinion of the presiding judge or magistrate, it is expedient in the interests of justice or propriety or for other sufficient reason so to do;(b)nothing in this section shall apply to—
(i)the proceedings of a juvenile court in accordance with the Children and Young Persons Act ;(ii)any proceedings in the High Court relating solely to a person under the apparent age of eighteen years;(iii)any proceedings in the High Court, other than the trial of a person of the apparent age of eighteen years or upwards, which the High Court, in its discretion, may think fit to conduct in closed court;(v)the deliberation of a jury in the course of any proceedings;(vi)any proceedings, other than an inquiry or trial, which the Chief Justice may, by writing, direct shall not be subject to this section.(2)Where the presiding judge or magistrate is of the opinion that, for purpose of avoiding delay, expense or inconvenience which in the circumstances of the case would be unreasonable, a court should be held on a Sunday, such court may be so held and no finding, sentence or order made or passed by a court of competent jurisdiction shall be reversed or altered only by reason of the fact that the same was made or passed on a Sunday.71A. Evidence of victims of sexual offences
(1)Where a victim of a sexual offence is to give evidence in any proceedings under this Code, the court may, of its own motion, upon application made by a party to the proceedings, or a victim of a sexual offence, make one or more of the following orders—
(a)that the court close while evidence is being given by the witness in the proceedings, including evidence given under cross-examination, and that no person remain in or enter a room or place in which the court is being held, or remain within the hearing of the court, without its permission;(b)that a screen, partition or one-way glass be placed to obscure the witness’s view of a party to whom the evidence relates, but not so as to obstruct the view of the witness by the magistrate or the judge and jury;(c)that the witness be accompanied by a relative or friend for the purpose of providing emotional support;(d)that the evidence of the witness be given at a place outside the courtroom and transmitted to the courtroom by means of closed circuit television.(2)Where the order is made under subsection (1) (b) or (d), the judge, in a trial by jury, shall cause a direction to be issued to the jury to the effect that—
(a)the procedure is a routine practice of the court;(b)no adverse inference is to be drawn against the accused person as a result of the issue of these orders; and(c)the evidence of the witness is not to be given any greater or lesser weight because of the use of such orders.(3)Where an order is made under subsection (1) (c), the relative or friend accompanying the witness shall be visible to the parties and the court and, in a trial by jury, to the jury, while the witness is giving evidence.(4)An order under this section may be made, varied or revoked on the court’s own initiative or on the application of a party or witness.72. Removal of person to another prison by warrant
A magistrate may on the application of the Director of Public Prosecutions grant a warrant for the removal of any person detained by virtue of a warrant in a prison on any criminal charge to any prison specified in such application therein to be detained for further examination or for trial, or until released or removed therefrom in due course of law.
73. Transfer of case to another subordinate court before inquiry or trial and transfer of trial to another subordinate court
(1)Where an accused person appears before another subordinate court, the court—
(a)shall, if satisfied that it has no jurisdiction of transfer to try or inquire into the case; or(b)may, if it is of the opinion that the case should be tried by or be inquired into by another subordinate court,direct that the case be adjourned and transfered to any subordinate court which is competent to try or inquire into the case.
(2)The court directing an adjournment in accordance with subsection (1) shall order the accused person to appear before the court to which the case has been transfered at such time and place as may be appointed and state in the presence and hearing of the party or parties or in the case of an accused who is represented, in the presence of his legal practitioner then present, and the court may further order that, in the meantime, the accused person be—
(a)released unconditionally;(b)committed to prison; or(c)released upon his entering into a bond, with or without sureties, at the discretion of the court, for the purpose of ensuring his appearance at the time and place appointed before the court to which the case has been transfered:Provided that no such adjournment shall be for a longer period than is reasonably necessary in the circumstances of the case, and shall not in any event exceed thirty days or, if the accused person is committed to prison, fifteen days; and the day following that on which the order is made shall be counted as the first day.
(3)A subordinate court may, on application or of its own motion, at any stage in an inquiry or trial, transfer such inquiry or trial, for hearing before itself at some other place.74. Transfer to another magistrate after commencement of inquiry or trial
(1)Where, in the course of any inquiry or trial before a magistrate, the evidence appears to warrant a presumption that the case is one which should be tried or committed for trial or inquiry by some other magistrate, he shall stay proceedings and submit the case with a brief report thereon to the Resident Magistrate in charge of the region who shall, in accordance with section 73 (2), make such order for the transfer of the case as he deems to be necessary or expedient.(2)Where, in the course of any inquiry or trial before a Resident Magistrate in charge of a region, the evidence appears to warrant a presumption that the case is one which should be tried or committed for trial by some other magistrate, he shall stay and submit the case with a brief report thereon to the High Court which shall, in accordance with section 73 (2), make such order for the transfer of the case as it may deem to be necessary or expedient.75. Power of High Court to change venue
(1)Where it is made to appear to the High Court that—
(a)a fair and impartial enquiry or trial cannot be had in any criminal court subordinate thereto;(b)some question of law of unusual difficulty is likely to arise;(c)viewing of the place or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same;(d)an order under this section will be for the general convenience of the parties or witnesses; or(e)an order under this section is expedient in the interest of justice or required by any provision of this Code, it may make an order in accordance with subsection (2).(2)For the purposes of subsection (1), the High Court may order—
(a)that any offence be inquired into or tried by any court not empowered under the preceding provisions of this Part but in other respects competent to inquire into or try such offence; and(b)that any particular criminal case or class of cases be transferred from a criminal court to any other such criminal court of equal or superior jurisdiction.(3)In making an order under this section, the High Court may act either on the report of the subordinate court or on the application of a party interested or on its own motion.(4)Every application for the exercise of the power conferred by this section shall be made by motion, which shall be supported by affidavit.(5)Any accused making an application under this section shall give to the Director of Public Prosecutions notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.(6)Where an accused makes an application under this section, the High Court may direct him to execute a bond, with or without sureties, on condition that he will, if convicted, pay the costs of the prosecution.76. Director of Public Prosecutions
(1)The Director of Public Prosecutions shall in accordance with, and subject to, section 99 of the Constitution, have vested in him the right and be entrusted with the duty of prosecuting all crimes and offences against the laws of Malaŵi.(2)Any officer, legal practitioner or other person appointed to be a public prosecutor under section 79 shall, in carrying out his duties as such, be under the direction and control of the Director of Public Prosecutions and be bound to conform to any direction which may be given to him by the Director of Public Prosecutions.77. Power to enter discontinuance
(1)In any criminal proceedings, and at any stage thereof before judgment is pronounced, the Director of Public Prosecutions may enter a discontinuance, either by stating in court or informing the court in writing, that the State intends that the proceedings shall not continue, and thereupon—
(a)if the discontinuance is entered before the accused person is called upon to make his defence, he shall be discharged immediately in respect of the charge for which the discontinuance is entered, and if the accused person—
(i)has been committed to prison, he shall be released; or(ii)is on bail, his recognizances shall be discharged,but such discharge of an accused person shall not operate as a bar to any subsequent proceedings commenced once against him within six months of the discharge, on account of the same facts;
(b)if the discontinuance is entered after the accused person is called upon to make his defence, he shall be acquitted.
(2)If the accused person is not before the court when a discontinuance in respect of a charge against him is entered in accordance with subsection (1) the Registrar or clerk of such court shall forthwith cause a notice in writing of the entry of the discontinuance to be given to—
(a)the keeper of the prison in which the accused person may be detained; or(b)if the accused person has been committed for trial, the subordinate court by which he was so committed; and such subordinate court shall forthwith cause a similar notice in writing to be given to—
(i)any witnesses bound over to prosecute and give evidence, and their sureties, if any; and(ii)the accused person and his sureties, in case he shall have been granted bail.
79. Power to appoint public prosecutors
(1)The Director of Public Prosecutions may, by writing under his hand, appoint generally, or in any case or any class of cases, any person employed in the Public Service or such other legally qualified person to be a public prosecutor.(2)Every public prosecutor shall be subject to the express directions of the Director of Public Prosecutions.80. Powers of public prosecutors
A public prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal; and if any private person instructs legal practitioner to prosecute in any such case a public prosecutor may conduct the prosecution, and the legal practitioner so instructed shall act therein under the directions of the public prosecutor.
81. Withdrawal from prosecution in trials before subordinate courts
In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instruction of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal—
(a)if it is made before the accused is called upon to make his defence, he shall be discharged, but such discharge of an accused shall not operate as a bar to subsequent proceedings against him on account of the same facts;(b)if it is made after the accused is called upon to make his defence, he shall be acquitted.
82. Permission to conduct prosecution
(1)Any magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, but no person other than a public prosecutor or other officer generally or specially authorized by the Director of Public Prosecutions in his behalf shall be entitled to do so without permission.(2)Any such person or officer shall have the like power of withdrawing from the prosecution as is provided by section 81, and that section shall apply to any withdrawal by any such person or officer.(3)Subject to any law for the time being in force, any person conducting the prosecution may do so personally or by legal practitioner.83. Mode of instituting proceedings
(1)Proceedings may be instituted—
(a)by the making of a complaint before a magistrate;(b)by bringing before a magistrate a person who has been arrested without warrant;(c)by a public prosecutor or a police officer signing and presenting a formal charge to a magistrate.(2)A complaint under subsection (1) (a) may be made by any person who believes from reasonable cause that an offence has been committed.(3)When a magistrate has received a complaint under subsection (1) (a), he shall at once examine the complaint upon oath, and the substance of the examination shall be reduced to writing and signed by both the complainant and the magistrate.(4)If the magistrate sees reason to doubt the truth of a complaint made under subsection (1) (a), he may record his reason for doubting the truth of the complaint and may then postpone the issue of process for compelling the attendance of the person complained against and either inquire into the case himself or direct some police officer to make inquiries for the purpose of ascertaining the truth or falsehood of the complaint and report to him the result of such inquiries.(5)The magistrate may dismiss a complaint made under subsection (1) (a) if, after examining the complaint and recording his examination and considering the result of the inquiry under subsection (4), there is in his judgment no sufficient ground for proceeding, and he shall record his reasons for dismissal.(6)If the magistrate considers that there are sufficient grounds for proceeding with a complaint made under subsection (1) (a), or upon the bringing before him of an accused arrested without warrant under subsection (1) (b), the magistrate shall forthwith draw up and charge containing a statement of the offence with which the accused is charged.84. Issue of summons or warrant
(1)Upon a formal charge having been completed in accordance with section 83, the magistrate may, in his discretion, issue either a summons or a warrant to compel the attendance of the accused before a subordinate court having jurisdiction to inquire into or try the offence alleged to have been committed.(2)The validity of any proceedings taken in pursuance of a complaint or charge shall not be affected either by any defect in the complaint or charge or by the fact that a summons or warrant was issued without complaint or charge.(3)Any summons or warrant may be issued on Sunday.85. Form and contents of summons
(1)Every summons issued by a court under this Code shall be in writing, in duplicate, signed and sealed by the presiding officer of such court or by such other officer as the Chief Justice may from time to time, by rule, direct.(2)Every summons shall—
(a)be directed to the person summoned, and shall require him to appear at a time and place to be mentioned in the summons before a court having jurisdiction to inquire into and deal with the complaint or charge;(b)contain a statement of the offence with which the person summoned is charged, and shall also contain the particulars of such offence.
86. Penalty for non-attendance of accused
Any accused summoned to attend before a court 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 adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine of K50,000.
87. Service of summons
(1)Every summons shall be served by a police officer or by an officer of the court issuing it or other public servant and shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons.(2)Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.88. Service when person summoned cannot be found
Where the person 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 adult servant residing with him or with his employer; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.
89. Procedure when service cannot be effected as before provided
If service in the manner provided by section 87 or section 88 cannot by the exercise of due diligence be affected, the serving officers shall affix one of the duplicates of the summons to some conspicuous part of the house in which the person summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly served.
90. Service on servant of government
Where the person summoned is in the service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed, and such head shall thereupon cause the summons to be served in the manner provided by section 87 and shall return it to the court under his signature with the endorsement required by that section. Such signature shall be evidence of the service.
91. Service of summons on company, etc.
(1)Service of a summons on a company incorporated in Malaŵi or on any other body corporate not being a company referred to in subsection (2) shall be effected in one of the following manners that is to say—
(a)by serving it on the company secretary, local manager or other principal officer of the company or body;(b)by delivering it to an adult person employed by such company or body at its registered office in Malaŵi; and(c)by sending it in a registered letter addressed to the chief officer of the company or body in Malaŵi.(2)Service of a summons on a company incorporated outside Malaŵi which has established a place of business within Malaŵi shall be effected by serving it on one of the person whose names and addresses have been filed with the registrar of companies as being authorized to accept service of process on behalf of the company under section 311 of the Companies Act .92. Proof of service
(1)Where the officer who has served a summons is present at the hearing of the case, in the absence of other proof of service, he may give evidence on oath of that fact and the manner in which he effected such service.(2)Where the officer who has served a summons is not present at the hearing of the case, an affidavit that such summons has been served, and a duplicate of the summons purporting to be endorsed in the manner hereinbefore provided by the persons to whom it was delivered or tendered or with whom it was left, shall be admissible statements made therein shall be deemed to be correct unless and until the contrary is proved.(3)The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the court.93. Power to dispense with personal attendance of accused
(1)Whenever a magistrate issues a summons in respect of any offence other than a felony, he may, if he sees reason so to do, and shall when the offence with which the accused is charged is punishable—
(b)with both a fine and imprisonment for a term not exceeding three months; or(c)with a fine or imprisonment for a term not exceeding three months,dispense with the personal attendance of the accused, provided that the accused pleads guilty in writing or appears by legal practitioner.
(2)The magistrate inquiring into or trying any case may in his discretion, at any subsequent stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in a manner hereinafter provided.(3)A magistrate shall not impose a sentence of imprisonment without the option of a fine, except in the presence of the accused.(4)If a magistrate imposes a fine on an accused whose personal attendance has been dispensed with under this section, the magistrate shall specify the time within which such fine must be paid, and if such fine is not paid within the time prescribed for such payment the magistrate may forthwith issue a summons calling upon such accused to show cause why he should not be committed to prison for such term as the magistrate may then prescribe; and if such accused does not attend upon the return of such summons the magistrate may forthwith issue a warrant and commit such accused to prison for such term as the magistrate may then fix.(5)If a previous conviction, not admitted in writing or through his legal practitioner is alleged against an accused whose attendance has been dispensed with under this section, the magistrate may adjourn the proceedings and direct the personal attendance of the accused, and if necessary, enforce such attendance in accordance with section 95.(6)The Chief Justice may, make rules for the better carrying out of this section.94. Warrant after issue of summons
Notwithstanding the issue of a summons, a court may issue a warrant at any time before or after the time appointed in the summons for the appearance of the accused.
95. Summons disobeyed
(1)If an accused person does not appear at the time and place mentioned in a summons and his personal attendance has not been dispensed with under section 93, the court may issue a warrant to arrest him and cause him to be brought before the court.(2)A warrant under subsection (1) shall not be issued unless the court is satisfied that the accused has been served with the summons.96. Form, contents and duration of warrant of arrest
(1)Every warrant of arrest shall be issued in the prescribed form, and shall be signed by the judge or magistrate issuing the warrant and shall bear the seal of the court.(2)Every warrant shall contain a statement of the offence with which the person against whom it is issued is charged and shall also contain the particulars of such offence and every warrant shall name or otherwise described such person, and it shall order the person or persons to whom it is directed to arrest the person against whom it is issued and bring him before the court issuing the warrant or before some other court having jurisdiction in the case to answer the charge therein mentioned and to be further dealt with according to law.(3)Every such warrant shall remain in force until it is executed or until it is cancelled by the court which issued it.97. Court may direct security to be taken
(1)Any court issuing a warrant for the arrest of any person in respect of any offence other than genocide, murder, treason or rape may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the court at a specified time and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.(2)The endorsement shall state—
(a)the number of sureties;(b)the amount in which they and the person for whose arrest the warrant is issued are to be respectively bound; and(c)the time 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.98. Warrants, to whom directed
A warrant of arrest may be directed to one more police officer, or to one police officer and to all other police officers of the District, or generally to all police officer; but any court issuing such a warrant may, if its immediate execution is necessary, and no police office is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.
99. Effect of addressing warrant to more than one officer or person
When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.
100. Execution of warrant directed to police officer
A warrant directed to any police officer may also be executed by any officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
101. Notification of substance of warrant
The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.
102. Person arrested to be brought before the court without delay
The police officer or other person executing a warrant of arrest shall, subject to the provisions of section 97 as to security, without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person.
103. Where warrant of arrest may be executed
A warrant of arrest may be executed at any place in Malaŵi and on any day including Sunday.
104. Procedure on arrest of person
(1)When a warrant of arrest is executed, the person arrested shall unless the court which issued the warrant is within thirty kilometres of the place of arrest, or is nearer than any other subordinate court, or unless security is taken under section 97, be taken before the subordinate court nearest to the place of arrest.(2)The magistrate presiding over such subordinate 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 court.(3)If the person has been arrested for an offence, other than genocide, murder, treason or rape, and he is ready and willing to give bail to the satisfaction of such magistrate, or if a direction has been endorsed under section 97 on the warrant and such person is ready and willing to give the security required by such direction, the magistrate shall take such bail or security, as the case may be, and shall forward the bond to the court which issued the warrant.(4)Nothing in this section shall be deemed to prevent a police officer from taking security under section 97.105. Irregularities in warrant
(1)Any irregularity or defect in the substance or form of a variance between it and the written complaint or charge, or between either and the evidence produced on the part of the prosecution at any enquiry or trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case.(2)Where the irregularity or defect and any such variance appears to the court to be such that the accused has been thereby deceived or misled, the court may, at the request of the accused, adjourn the hearing of the case to some future date, and in the meantime remand the accused or grant him bail.106. Proclamation for person absconding
(1)If any court has reason to believe, whether after taking evidence or not, that any person against whom a warrant of arrest has been issued by it—
(b)is concealing himself so that such warrant cannot be executed,such court may publish a written proclamation requiring him to appear at a specified time not less than thirty days from the date of publishing such proclamation.
(2)The court shall publish the proclamation as follows—
(a)it shall be publicly read in some conspicuous place of the town, village or area in which such person ordinarily resides, or if such person has no ordinary place of residence in Malaŵi, in which he was last known to be residing;(b)it shall be affixed to some conspicuous part of the house in which such person ordinarily resides or to some conspicuous place of the area, town or village in which he was last known to be residing;(c)a copy thereof shall be affixed to some conspicuous part of the court house.(3)A statement in writing 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.107. Attachment of property of proclaimed person
(1)The court issuing the proclamation under section 106 may at any time order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person as is appearance at the place and time specified in the proclamation.(2)Such order shall be in writing and shall authorize the attachment of any property belonging to the proclaimed person.(3)If the property ordered to be attached is a debt or movable property, the attachment under this section shall be made—
(b)by the appointment of a receiver; or(c)by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or(d)by all or any two of such methods as the court thinks fit.(4)If the property ordered to be attached is immovable, attachment under this section shall be made—
(a)by taking possession; or(b)by the appointment of a receiver; or(c)by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person, or to anyone on his behalf; or(d)by all or any two of such methods as the court thinks fit.(5)If the property ordered to be attached consists of livestock, or is of a perishable nature, the court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the court.(6)The Chief Justice may make rules—
(a)prescribing the powers, duties and liabilities of a receiver appointed under this section; and(b)for the better regulation of the attachment process.(7)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 Government; but it shall not be sold until the expiration of six months from the date of 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 when it shall think fit. The purchaser of any property so sold shall acquire a good title to it.108. Restoration of attached property
(1)Any proclaimed person may apply for the delivery of property which is or has been at the disposal of Government under within two years of the date of the attachment, he appears voluntarily or is arrested and brought before the court by whose order the property was attached or the High Court.(2)If the proclaimed person proves to the satisfaction of the court that—
(a)he did not abscond or conceal himself for the purpose of avoiding execution of the warrant; and(b)he had not such notice of the proclamation as to enable him to attend within the time specified in the warrant,such property, or, if the same has been sold, the net proceeds of the sale, or, if part of the property has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying all costs incurred in consequence of the attachment, be delivered to him.
(3)Any person whose application under this section for the delivery of property or the proceeds of the sale of the property, as the case may be has been rejected by any court may appeal to the High Court, and the provisions of Part XIII relating to appeals shall apply to any such appeal.109. Power to take bond for appearance
Where any person for whose appearance or arrest any court is empowered to issue a summons or warrant is present in such court, the court may require such person to execute a bond, with or without sureties, for his appearance in such court.
110. Arrest for breach of bond for appearance
When any person who is bound by any bond taken under this Code to appear before a court does not so appear, such court may issue a warrant directing that such person be arrested and produced before it.
111. Power of court to order prisoner to be brought before it
(1)Where any person for whose appearance or arrest a court is empowered to issue a summons or warrant is confined in any prison, the court may issue an order to the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before such court.(2)The officer in charge of prison, on receipt of the order under subsection (1), shall comply with it in accordance therewith, and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose of court attendance.112. Provisions of this Part generally applicable to summonses and warrant
The provisions contained in this Part relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.
113. Power to issue search warrant
(1)Where a police officer applies for a search warrant, he shall—
(a)state the ground on which he makes the application and the law under which the warrant will be issued;(b)specify the premises, ship, aircraft, carriage, box or receptacle which it is desired to enter and search; and(c)identify, so far as is practicable, the articles or persons to be sought.(2)An application for a search warrant shall be made ex-parte, and shall be supported by information in writing.(3)The police officer making the application shall answer on oath any question that the court hearing the application may put to him.(4)A search warrant shall authorize an entry on one occasion only.113A. Search warrant
(1)A court may issue a warrant authorizing a police officer to enter and search any premises, ship, aircraft, carriage, box or receptacle if, on application made by a police officer, the court is satisfied that there are reasonable grounds for believing that—
(a)an offence has been committed;(b)there is material on any premises, ship, aircraft, carriage, box or receptacle specified in the application which is likely to be of substantial value, whether by itself or together with other material, to the investigation of the offence; and(c)the material does not consist of or include items subject to legal privileges.(2)If the police officer finds the material in respect of which a search warrant is issued under subsection (1), he shall seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law.114. Execution of search warrant
Every search warrant may be issued on any day including Sunday between the hours of sunrise and sunset, but the court may, by the warrant, in its discretion, authorize the police officer or other person to whom it is addressed to execute it at any hour.
115. Persons in charge of closed place to allow entry
(1)Whenever any building or other place liable to search is closed, any person residing in or being in charge of such building or place shall, on demand of the police officer or other person executing the search warrant, and on production of the warrant, allow him free entry thereto and departure therefrom and afford all reasonable facilities for a search therein.(2)If entry into, or departure from, such building or other place cannot be so obtained, the police officer or other person executing the search warrant may proceed in the manner prescribed by section 21 or(3)Where any person in or about such building or place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person is a woman, section 26 (1) shall be observed.116. Detention of property seized
(1)When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.(2)If any appeal is made, or if any person is committed for trial, the court may order it to be further detained for the purpose of the appeal or trial.(3)If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit and is authorized or required by law to dispose of it otherwise.117. Provisions applicable to search warrants
Section 96 (1) and (3) and sections 98, 99, 100, 103, 104 and 105 shall, so far as may be, apply to all search warrants issued under 113.
118. Bail in certain cases
(1)When any person, other than a person accused of an offence punishable with death, is arrested or detained without warrant by a police officer, or appears or is brought before a subordinate court, and is prepared at any time while in the custody of such police officer or at any stage of the proceedings before such subordinate court to give bail, such person may be released on bail by such police officer or such subordinate court, as the case may be, on a bond, with or without sureties.(2)The amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.(3)The High Court may, either of its own motion or upon application, direct that any person be released on bail or that the amount of, or any condition attached to, any bail required by a subordinate court or police officer be reduced or varied.(4)A magistrate may direct that the amount of, or any condition attached to, any bail by a police officer be reduced or varied.(5)No application for a direction that any person in custody pending proceedings in a subordinate court be released on bail shall be entertained by the High Court unless such subordinate court has first refused to direct such release.119. Bail bond
(1)Before any person is released on bail, a bond for such sum as the police officer or court, as the case may be, thinks sufficient, shall be executed by such person and, where sureties are ordered, by one or more sufficient sureties.(2)The bond under this section shall be on condition that the person released shall attend at the time and place mentioned in the bond, and that he shall continue so to attend until otherwise directed by the police officer or court.(3)The bond may, as the police officer or court thinks fit, contain additional conditions relating to, among others—
(a)the prohibition of, or control over, the movements of the person released;(b)the prohibition of, or control over, communication by the released person with witnesses for the prosecution;(c)the supervision the released person should undergo while on bail;(d)the prohibition against the commission of offences by the released person while on bail; and(e)the prohibition against obstruction of the course of justice by the released person while on bail.
120. Discharge from custody
(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 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 or in section 118 shall be deemed to require the release of any person liable to be detained for some matter other than in respect of which the bond was executed.121. Deposit in place of, or in addition to, bond
(1)When any person is required by any police officer or court to execute a bond, with or without sureties, such police officer or court may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or property to such amount or value as the police officer or court may require in place of, or in addition to, executing such a bond; and such amount or value shall be fixed with due regard to the circumstances of the case and shall not be excessive.(2)Where any money or property has been deposited in accordance with subsection (1) and it is proved to the satisfaction of a court that the depositor has not fulfilled the conditions upon which such money or property was deposited, the court shall record the grounds of such proof and may call upon the depositor to show cause why such money or property should not be forfeited, and if sufficient cause is not shown or if the court is satisfied that the depositor has absconded or cannot be traced the court may order such money or property to be forfeited.122. Power to order sufficient bail when that first taken is insufficient
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 until the trial or until the court shall see fit to admit him to bail upon a fresh bond.
123. Discharge and death of sureties
(1)All or any of the sureties for the appearance and attendance of a person released on bail may at any time apply to a magistrate to discharge the bond either wholly or so far as it relates to the applicant or applicants.(2)On such application being made the magistrate shall issue a warrant of arrest directing that the person so released be brought before him.(3)On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the magistrate shall direct the bond to be discharged either wholly or so far as it relates to the applicant or applicants, and shall call upon such person to find other sufficient sureties, and if he fails to do so may commit him to prison until the trial or until the court shall see fit to admit him to bail upon a fresh bond.(4)Where a surety to bond before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, but the party who gave the bond may be required to admit him to bail upon a fresh bond.124. Person bound by bond absconding may be committed
If it is made to appear to any court, by information upon oath, that any person bound by bond is about to leave Malaŵi, the court may cause him to be arrested and may commit him to prison until the trial, unless the court shall see fit to admit him to bail upon a fresh bond.
125. Forfeiture of bond
(1)Whenever it is proved to the satisfaction of the court that any condition of a bond taken under this Part has not been complied with, 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 or if the court is satisfied that the person so bound has absconded or cannot be traced, the court may proceed to recover the penalty by issuing a warrant for the attachment and sale of the movable property belong to such person, or his estate if he be dead.(3)If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the court, which issued the warrant, to imprisonment for six months.(4)The court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.(5)When any person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his bond a certified copy of the judgment of the court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used the court shall presume that such offence was committed by him unless the contrary is proved.(6)All orders made under this section by any magistrate shall be appealable to and may be reviewed by the High Court.126. Offences to be specified with necessary particulars
Every charge shall contain, and shall be sufficient if it contains—
(a)a statement of the specified offence or offences with which the accused is charged; and(b)particulars of such offence or offences.
127. Joinder of counts in a charge and joinder of two or more accused in one charge
(1)Any offences, whether felonies or misdemeanours, may be charged together in the same charge if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or similar character.(2)When more than one offence is charged in a charge, a description of each offence so charged shall be set out in a separate paragraph of the charge called a count.(3)Where, before trial, or at any stage of the trial, the court is of opinion that—
(a)an accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same charge; or(b)for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a charge,the court may order a separate trial of any count or counts of such charge.
(4)The following persons may be joined in one charge and may be tried together, namely—
(a)persons accused of the same offence committed in the course of the same transaction;(b)persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;(c)persons accused of more offences than one of the same kind (that is to say, offences punishable with the same amount of punishment under the same section of the Penal Code or of any other written law) committed by them jointly within a period of twelve months;(d)persons accused of different offences committed in the course of the same transaction;(e)persons accused of any offence under Chapters XXVI to XXXI, inclusive, of the Penal Code and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by any such offence committed by the first-named person, or of abetment or of attempting to commit either of such last-named offences;(f)persons accused of any offence relating to counterfeit coin under Chapter XXXVII of the Penal Code , and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment or of attempting to commit any such offence.
128. Rules for the framing of charges
The following provisions shall apply to all charges and notwithstanding any rule of law or practice, a charge shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code—
(a)
(i)a count of a charge shall commence with a statement of the offence charged, called the statement of offence;(ii)the statement of the offence be short and shall describe the offence in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by written law, shall contain a reference to the section, regulation, by-law or rule of the written law creating the offence;(iii)after the statement of the offence, particulars of such offence shall be set out in ordinary language, giving reasonable information as to the commission of the offence and avoiding as far as possible the use of technical terms;(iv)where any rule of law or any Act limits the particulars of an offence which are required to be given in a charge, nothing in this paragraph shall require any more particulars to be given than those so required;(v)such forms as the Chief Justice may by rule prescribe or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable, and in other cases forms to the like effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case;(vi)where a charge contains more than one count, the counts shall be numbered consecutively;(b)
(i)where a written law constituting an offence states the offence to be an omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the law may be stated in the alternative in the count charging the offence;(ii)it shall not be necessary in any count charging an offence constituted by a written law, to negative any exception or exemption from, or qualifications to, the operation of the law creating the offence;(c)
(i)the description of property in a charge shall be in ordinary language, and such as to indicate with reasonable clearness the property referred to, and, if the property is so described, it shall not be necessary (except when required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property;(ii)where the property is vested in more than one person, and the owners of the property are referred to in a charge, it shall be sufficient to describe the property as owned by one of those persons by name with the others, and if the persons owning the property are a body of persons with a collective name, such as a joint stock company or "Inhabitants", "Trustees", "Commissioners", or "Club", or other such name it shall be sufficient to use the collective name without naming any individual;(iii)property belonging to or provided for the use of any public establishment, service or department may be described as the property of the Government;(iv)coin and banknotes may be described as money; and any allegation as to money, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank or currency note (although the particular species of coin of which such amount was composed, or the particular nature of the bank or currency note, shall not be proved); and in cases of stealing and defrauding by false pretences, by proof that the accused dishonestly appropriated or obtained any coin or any bank or currency note, or any portion of the value thereof, although such coin or bank or currency note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same or to any other person and such party shall have been returned accordingly;(d)the description or designation in a charge of the accused, or of any other person to whom reference is made therein, shall be such as is reasonably sufficient to identify him, without necessarily stating his correct name, or his abode, style, degree or occupation; and if, owing to the name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, such description or designation, shall be given as is reasonably practicable in the circumstance, or such person may be described as "a person unknown";(e)where it is necessary to refer to any document or instrument in a charge, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport thereof, without setting out any copy thereof;(f)subject to any other provisions of this section it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any change in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to;(g)it shall not be necessary in stating any intent to defraud, deceive or injure to state an intent to defraud, deceive or injure any particular person, where the written law creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence;(h)where any person is charged with an offence and such person would, if convicted thereof, be liable, under the provision of any law, to an enhanced punishment by reason of a previous conviction for any offence, the charge shall not contain any reference to such previous conviction, and he shall be liable to such enhanced punishment if such previous conviction is proved after he has been convicted of the offence with which he is charged;(i)figures and abbreviations may be used for expressing anything which is commonly expressed thereby; and(j)when a person is charged with any offence under section 283, 286, 287 or 288 of the Penal Code it shall be sufficient to specify the gross amount of the property 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 times or exact dates.
129. Previous conviction or acquittal of same offence
Where an act or omission constitutes an offence under two or more written laws, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under any one of such laws, but shall not, while a conviction or acquittal of an offence by a court has not been set aside, be liable to be tried again on the same facts for substantially the same offence:Provided that a person convicted or acquitted of an offence may afterwards be tried for any distinct offence with which he might have been charged under section 127 at the trial at which he was so convicted or acquitted.
130. Consequences supervening and not known at time of former trial
A person convicted or acquitted of any act causing consequences which together with such act constitute a different offence from that for which such person was convicted or acquitted, may be afterward 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 acquitted or convicted.
131. Pleas that accused has been previously acquitted or convicted of same offence
(1)A accused against whom a charge has been filed may plead that he has been previously convicted or acquitted by a court of the same offence.(2)If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that it is false in fact, the accused shall be required to plead to the charge.(3)If the court holds that the plea is true in fact, the accused shall be discharged.(4)For a plea under subsection (1) to succeed, the earlier conviction or acquittal relied on by the accused must have been by a court of competent jurisdiction and the proceedings must not have been ultra vires.132. Where original court was not competent to try subsequent charge
A person convicted or acquitted of any offence constituted by any acts may, notwithstanding such conviction or acquittal 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.
133. Inquiry by court as to unsoundness of mind
(1)When in the course of a trial or preliminary inquiry the court has reason to believe that the accused may be of unsound mind so as to be incapable of making his defence, the court shall adjourn the trial or inquiry for such period, not exceeding one month, as the court may deem fit, and shall thereafter—
(a)order that during such adjournment the accused shall be kept in custody or at such other appropriate place as the court may direct, for observation and treatment;(b)direct that a medical practitioner examine the accused and inquire into his mental condition, with particular reference to his capability of making his defence, and report to the court thereon, and the medical practitioner shall comply with such direction and his report shall on its mere production be admissible in evidence as proof of its contents;(c)the court shall forward to the medical practitioner with its the reasons for its giving such directions.(2)If at the time and place to which the hearing shall be adjourned such report is not, or has not been, furnished to it, the court may, without requiring any attendance before it of the accused, adjourn the trial or inquiry for such further period, not exceeding fourteen days, as may appear to it necessary to enable such report to be so furnished.(3)If at the time and place to which the hearing or the further hearing shall be adjourned, such report is, or has been, furnished to the court, it shall consider the same. Copies of the report shall be supplied by the court to the prosecution and to the accused or his legal practitioner either at the hearing, or, if practicable, before it. The court may in its discretion cause the medical practitioner who furnished the report to be summoned to give oral evidence at the hearing. If upon consideration of the report and of any evidence which may have been adduced upon the question of the mental condition of the accused by or on behalf of the prosecution or the accused the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence it shall adjourn further proceedings in the case to a then unspecified time and place.(4)If the case is one in which bail may be taken, the court may release the accused on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or any other person, and for his appearance before the court or such other officer as the court may appoint in that behalf.(5)If the case is one in which bail ought not to be taken, or if sufficient security be not given, the court shall make a reception order for the admission of the accused to a mental hospital. No person admitted to a mental hospital under a reception order made under this subsection may be discharged from such hospital without the sanction of the court unless a discontinuance has been entered discontinuing the proceedings in the course of which such order was made. If such a discontinuance has been entered a copy of the discontinuance order shall be served on the Secretary for Health and the person detained may be discharged from the mental hospital upon an order in writing by the Secretary for Health or by three of the visitors of the mental hospital one of whom shall be a medical practitioner.(6)Whenever any preliminary inquiry or trial is postponed the court may at any time resume the preliminary inquiry or trial and to appear or be brought before such court, when, if the court considers him capable of making his defence, the preliminary inquiry or trial shall proceed. But if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before it for the first time.(7)Any question arising under this section in any proceedings held before the High Court shall be determined by the judge and not by a jury.(8)If the trial is one before the High Court, and the High Court has reason to believe that the accused may be of unsound mind so as to be incapable of making his defence at any time after the accused has been given in charge of a jury, the High Court may order the jury to be discharged from giving a verdict on the count or counts in the charge when it makes any adjournment under this section.(9)Notwithstanding the discontinuance pursuant to this section, the Secretary for Health shall furnish to the court monthly reports in the prescribed form on the status of the person detained until such person is discharged from hospital.(10)Where it appears that there is sufficient reason to believe that an accused is of unsound mind and incapable of conducting his defence, the court may, if the accused is not represented by a legal practitioner and the court considers that the interest of justice so requires, assign a legal practitioner to act on behalf of the accused.134. Defence of insanity at preliminary inquiry
When the accused appears to be of sound mind at the time of the preliminary inquiry, the court, notwithstanding that it is alleged that at the time when the act was committed in respect of which the accused is charged he was by reason of unsoundness of mind incapable of knowing the nature of the act or that it was wrong or contrary to law, shall proceed with the case and, if the accused ought, in the opinion of the court, to be committed for trial, the court shall so commit him.
135. Defence of insanity on trial
(1)Where any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence that he was insane so as not to be responsible, according to law, for his actions at the time the act was done or omission made, then, if it appears to the court before which such person is tried that he did the act or made the omission charged but was insane as aforesaid at the time when he did or made the same, the court shall make a special finding to the effect that the accused is not guilty by reason of insanity.(2)When such special finding is made the court shall make a reception order for the admission of the accused to a mental hospital and the court may, if it thinks fit, make a further order, with or without limitation of time, restricting his discharge from such mental hospital without the sanction of the Minister.(3)Any question arising under this section in any proceedings held before the High Court shall be determined by the jury and not by the judge.136. Certificate of medical officer as to sanity to be evidence
If, while an accused is detained in a mental hospital under a reception order made under section 133 (4), the medical officer in charge of such mental hospital certifies to the court that he is satisfied that the accused can properly be tried, he shall remit the accused to prison to be brought before the court at such time as the court appoints to be dealt with according to law and the certificate of such medical officer shall be receivable in evidence. The medical officer shall forward a copy of such medical certificate to the officer in charge of the prison to which he remits the accused and such certificate shall be sufficient authority for the reception of the accused into such prison and for his detention until he is so dealt with by the court. The court may in its discretion cause the medical practitioner to be summoned to give oral evidence at the hearing. On the arrival of the accused at the prison the order made under section 133 (4) shall cease to have effect. When the accused is brought before the court, if the court considers him capable of making his defence, the preliminary inquiry or trial shall proceed. If the court considers the accused to be still incapable of making, it shall act as if the accused were brought before it for the first time.
137. Authority and effect of reception orders made under section 133 or 135
Subject to sections 133 (4) and 135, a reception order made thereunder shall have the same authority and effect as a reception order lawfully made under section 20 of the Mental Treatment Act and the court by which any such order as aforesaid is made may give such directions as it thinks fit for the conveyance of the accused to whom the order relates to a place of safety and his detention therein pending his admission to the mental hospital.
138. Procedure where accused does not understand proceedings
If the accused, though not insane, cannot be made to understand the proceedings, the court may proceed with the preliminary inquiry or trial; and in the case of a court other than the High Court, if such trial results in a conviction the proceedings shall be forwarded to the High Court with a report of the circumstances, and the High Court shall make thereon such order as it thinks fit.
139. Mode of delivering of judgment
(1)The judgment in every trial, other than a jury trial, in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court, either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties; but the whole judgment shall be read out by the presiding judge or magistrate if he is requested to do so either by the prosecution or defence.(2)The accused shall, if in custody, be brought up or, if not in custody, be required by the court to attend to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only; but if the court intends to acquit the accused it may dispense with his attendance.(3)No judgment delivered by any court shall be deemed to be invalid by reason only of the absence of any party or his legal practitioner on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or legal practitioner, or any of them, the notice of such day and place.(4)Nothing in this section shall be construed to limit in any way the provisions of section 5.140. Contents of judgments
(1)Every judgment shall, except as otherwise expressly provided by this Code, be in writing and shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the presiding officer.(2)In the case of a conviction the judgment shall specify the offence of which, and the section of the Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.(3)In the case of an acquittal the judgment shall state the offence of which the accused is acquitted.(4)The requirements of this section, other than the requirements that judgments be in writing and signed, shall not apply to any judgment given in accordance with the verdict of a jury.141. Copy of judgment, etc., to be given to accused on application
On the application of the accused a copy of the judgment or, when he so desires, a translation in a language he understands, if practicable, shall be given to him without delay. There shall be payable for such copy such fee, if any, as may be prescribed.
142. Costs against accused or private prosecutor
(1)It shall be lawful for a judge or a magistrate to order any person convicted before him of an offence to pay to the public as the case may be, such reasonable costs as to such judge or magistrate may seem fit, in addition to any other penalty imposed.(2)A judge or magistrate who acquits or discharges a person accused of an offence may, if the prosecution for such offence was originally instituted on summons or warrant issued by a court on application of a private prosecutor, and the judge or magistrate considers that the prosecutor had no reasonable grounds for making his complaint, order such private prosecutor to pay to the accused such reasonable costs as the judge or magistrate may deem fit.(3)The costs awarded under this section may be awarded in addition to any compensation awarded under section 144.(4)In this section—"public prosecutor" means any person prosecuting for or on behalf of the State and any public prosecutor appointed under section 79;"private prosecutor" means any prosecutor other than a public prosecutor.143. Order to pay costs appellable
An appeal shall lie from any order awarding costs under section 142 if made by a magistrate to the High Court and if by a judge to the Supreme Court of Appeal. The appellate court shall have power to make such order regarding the costs of the appeal as it shall deem reasonable.
144. Costs and compensation to be specified in order, how recoverable
(1)Sums allowed for costs under section 142 or any compensation awarded shall in all cases be specified in the judgment of the court.(2)If the person who has been ordered to pay the costs or compensation fails to pay, he shall, in default of seizure and sale levied in accordance with section 330, be liable to imprisonment in accordance with the scale laid down in section 29 of the Penal Code , unless such costs or compensation be sooner paid.145. Power of court to award expenses or compensation out of fine
(1)Whenever any court imposes a fine, or confirms on appeal, review or otherwise a sentence of fine, or a sentence of which a fine forms part, the court may, when giving judgment, order the whole or any part of the fine recovered to be applied—
(a)in defraying expenses properly incurred in the prosecution;(b)in the payment to any person of compensation for any loss or injury caused by the offence when substantial compensation is in the opinion of the court recoverable by civil suit.146. Payment of amount awarded under section 145, etc.
(1)If the fine referred to in section 145 is imposed in a case which is subject to appeal no such expenses or compensation shall be paid out of the fine before the period allowed for presenting the appeal has elapsed, or, if an appeal is presented, before the decision of the appeal.(2)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.147. Property found on accused person
Where, on the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—
(a)that the property or a part thereof be restored to the person who appears to the court to be entitled thereto, and, if he is the person charged, that it be restored either to him or to such other person as he may direct; or(b)that the property or a part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged.
148. Restitution of stolen property
(1)If any person guilty of an offence mentioned in Chapters XXVI to XXXII, inclusive, of the Penal Code , in stealing, taking, obtaining, extorting, converting, or disposing of, or in knowingly receiving any property, is prosecuted to conviction, the property shall be restored to the owner or his representative.(2)In every case referred to in this section, the court before which such offender is convicted shall have power to award, from time to time, writs of restitution thereof in a summary manner.(3)Where goods have been obtained by fraud or other wrongful means not amounting to stealing, the property in such goods shall not vest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.(4)On the restitution of any stolen property, if it appears to the court by the evidence that the offender has sold the stolen property to any person, that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the offender on his apprehension, the court may, on the application of such purchaser, order that out of such moneys a sum not exceeding the amount of the proceeds of such sale be delivered to the said purchaser.(5)The operation of any order made under this section shall, before which the conviction takes place directs to the contrary in any case in which the title to the property is not in dispute, be suspended until the time for appeal has elapsed and in any case where an appeal is lodged, until the determination of the appeal.(6)Where the operation of any order made under this section is suspended until the determination of the appeal, the order shall not take effect as to the property in question if the conviction is quashed on appeal.(7)The Chief Justice may make provision by rules for securing the safe custody of any property, pending the suspension of the operation of any such order.(8)Any person aggrieved by an order made under this section may appeal to the High Court, and upon the hearing of such appeal the High Court may by order annul or vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed.(9)In this section the word "goods" includes all chattels, personal (other than things in action and money) emblements, industrial growing crops, and, where there is a contract for sale, things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.(10)Nothing in this section shall apply to the case of any security which has been paid in good faith or discharged by a person liable to the payment thereof, or being a negotiable instrument, has been taken in good faith or received by transfer or delivery by a person for a just and valuable consideration without any notice or without reasonable cause to suspect that the same has been stolen.149. Disposal of property
(1)At any time in the course of, or after the conclusion of, an inquiry or trial, the court may make such order as it thinks fit for the disposal, by destruction, forfeiture, confiscation, delivery to any person claiming to be entitled to possession thereof, or in any other manner, of any property or documents produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence.(2)When the High Court makes such order and cannot through its own officers conveniently carry out such order, the High Court may direct that the order be carried into effect by a subordinate court.(3)When an order is made under this section, such order shall not (except where the property is livestock or is subject to speedy and natural decay) be carried out until the period allowed for appealing against such order has expired or, when an appeal is brought within such period, until such appeal has been disposed of.(4)In this section, "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 person 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.150. When offence proved is included in offence charged
(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor and cognate offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor and cognate offence although 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 and cognate offence, he may be convicted of the minor and cognate offence although he was not charged with it.151. Alteration of charge, etc.
(1)Every objection to any charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.(2)Where at any stage of the trial before the court complies with section 254, or call on the accused for his defence under section 313, as the case may be, it appears to the court—
(a)that the charge is defective either in substance or form;(b)that the evidence discloses an offence other than the offence with which the accused is charged;(c)that the accused desires to plead guilty to an offence other than the offence with which he is charged,the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge as it thinks necessary to make in the circumstances of the case, unless, having regard to the merits of the case, such amendments cannot be made without injustice.
(3)Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge and the charge shall be treated for the purposes of the proceedings in connexion therewith as having been filed in the amended form.(4)Every such new or altered charge shall be read and explained to the accused.(5)The court shall thereupon call upon the accused to plead to the altered charge and to state whether he is ready to be tried on such new or altered charge.(6)If the accused declares that he is not ready, the court shall duly consider the reasons he may give and, if proceeding immediately with the trial is not likely in the opinion of the court to prejudice the accused in his defence or the prosecution in the conduct of the case, the court may, after such charge or alteration has been framed or made, proceed with the trial as if the new or altered charge had been the original charge.(7)If the new or altered charge is such that proceeding immediately with the trial is likely in the opinion of the court to prejudice the accused or the prosecution, the court may direct a new trial or adjourn for such period as is necessary.(8)Where a magistrate decides to proceed with the new or altered charge without directing a new trial he shall, save where he is of the opinion that the presence of a witness cannot be obtained without an amount of delay or expense which, in the circumstances of the case, he considers unreasonable, re-summon all or any witness for re-cross-examination if so requested by the accused.(9)If the offence stated in the new or altered charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has already been obtained for a prosecution on the same facts as those on which the new or altered charge is founded.(10)Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need to be amended for such variance if it is proved that the proceedings were instituted within the time limited by law for the institution thereof.152. Person charged with any offence may be convicted of attempt
When a person is charged with an offence, he may be convicted of having attempted to commit that offence, although he was not charged with the attempt.
153. Alternative verdicts in various offenced involving the homicide of children
(1)When a woman is charged with the murder of her child, being a child under the age of twelve (12) months, and the court is of opinion or the jury finds, as the case may be, that she, by any willful act or omission, caused its death but at the time of the act or omission she had not fully recovered from the effect of giving birth to such child and that by reason thereof or by reason of the effect of lactation consequent upon the birth of the child, the balance of her mind was then disturbed, she may, notwithstanding that the circumstances were such that but for section 230 of the Penal Code she might be convicted of murder, be convicted of the offence of infanticide although she was not charged with it.(2)When a person is charged with the murder or manslaughter of any child or with infanticide, or with an offence under section 149 or section 150 of the Penal Code (relating to the procuring of abortion), and the court is of opinion or the jury finds, as the case may be, that he is not guilty of murder, manslaughter or infanticide or of an offence under section 149 or section 150 of the Penal Code , but that he is guilty of the offence of killing an unborn child, he may be convicted of that offence although he was not charged with it.(3)When a person is charged with killing an unborn child and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence but that he is guilty of an offence under either section 149 or section 150 of the Penal Code , he may be convicted of that offence although he was not charged with it.(4)When a person is charged with the murder or infanticide of any child or with killing an unborn child and the court is of opinion or the jury finds, as the case may be, that he is not guilty of any of the said offences, but that he is guilty of the offence of concealment of birth or the offence of abandonment of child at birth, he may be convicted of the offence of concealment of birth or the offence of abandonment of child at birth although he was not charged with it.154. Alternative verdict in charge of manslaughter from driving of motor vehicle
When a person is charged with manslaughter in connexion with the driving of a motor vehicle by him and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence, but that he is guilty of an offence under section 126, 127 or 128 of the Road Traffic Act , or under any law in substitution therefor, he may be convicted of that offence although he was not charged with it.
155. Alternative verdict in charges of rape and kindred offences
(1)When a person is charged with rape and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence but that he is guilty of an offence under one of the sections 137,(2)When a person is charged with an offence under section 157 of the Penal Code and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence but that he is guilty of an offence under one of the sections 138 and 139 of the Penal Code , he may be convicted of that offence although he was not charged with it.(3)When a person is charged with the defilement of a girl and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence but that he is guilty of an offence under one of the sections 137 and 141 of the Penal Code , he may be convicted of that offence although he was not charged with it.156. Person charged with burglary, etc., may be convicted of kindred offence
When a person is charged with an offence mentioned in Chapter XXIX of the Penal Code and the court is of opinion or the jury finds, as the case may be, that he is not guilty of any other offence mentioned in the said Chapter, he may be convicted of that other offence although he was not charged with it.
157. Alternative verdicts in charges of stealing and kindred offences
(1)When a person is charged with stealing anything and—
(a)it is proved that he received the thing knowing the same to have been stolen, he may be convicted of the offence of receiving although he was not charged with it;(b)it is proved that he obtained the thing in any such manner as would amount, under the Penal Code or any other law for the time being in force, to obtaining it by false pretences with intent to defraud, he may be convicted of the offence of obtaining it by false pretences although he was not charged with it;(c)the facts proved amount to an offence under section 329 of the Penal Code , he may be convicted of the offence under that section although he was not charged with it.(2)When a person is charged with obtaining anything capable of being stolen by false pretences with intent to defraud, and it is proved that he stole the thing, he may be convicted of the offence of stealing although he was not charged with it.158. Construction of sections 150 to 157
Sections 150 to 157, inclusive, shall be construed as being in addition to, and not in derogation of, any other written law and the other provisions of this Code, and sections 152 to 157, inclusive, shall be construed as being without prejudice to the generality of sections 150 and 151.
159. Person charged with misdemeanour not to be acquitted if felony proved, unless court so directs
(1)Where in any trial for a misdemeanour the facts proved in evidence amount to a felony the accused shall not be acquitted of the misdemeanour.(2)No person tried for a misdemeanour under subsection (1) shall be liable afterwards to be prosecuted for a felony on the same facts, unless the court shall think fit, in its discretion, without recording a verdict, to direct such person to be prosecuted for the felony.(3)Where the court directs that the person be prosecuted for the felony under subsection (2), the person may be dealt with as if previously he was not put on trial for the misdemeanour.161. Promotion of reconciliation
In all cases a court may, without formality, promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court and may thereupon order the proceedings to be stayed or terminated.
Part IVA – Pre-trial custody time limits
161A. Pre-trial custody time limits
An accused person may be held in lawful custody in relation to an offence while awaiting the commencement of his trial in accordance with the periods specified under this Part.
161B. Interpretation
In this Part, unless the context otherwise requires, "lawful custody" means custody sanctioned by a court order pending trial.
161C. Reckoning of time
(1)For the purposes of this Part, time shall run upon the expiry of forty-eight hours after the arrest of an accused person, or if the period of forty-eight hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry.(2)Notwithstanding subsection (1), where an accused person is in lawful custody in relation to one offence and is subsequently charged with another offence not arising on the same facts or in the course of the same transaction, the time in relation to the subsequent offence shall run from the date when the accused person is charged with the offence.161D. Custody time limit for offences triable in subordinate courts
The maximum period that a person accused of an offence triable in a subordinate court may be held in lawful custody pending commencement of his trial in relation to the offence shall be thirty days.
161E. Custody time limit in relation to committal proceedings
The maximum period that a person accused of an offence triable in the High Court may be held in lawful custody pending his committal for trial to that Court under Part VIII or Part IX of this Code in relation to that offence shall be thirty days.
161F. Custody time limit for offences triable in the High Court
Where a person accused of an offence triable in the High Court is committed to the High Court for trial, the maximum period that he may be held in lawful custody pending commencement of his trial in relation to that offence shall be sixty days.
161G. Custody time limit for serious offences
The maximum period that a person accused of treason, genocide, murder, rape, defilement and robbery may be held in lawful custody pending commencement of his trial in relation to that offence shall be ninety days.
161H. Extension of custody time limit
(1)The prosecution may, at least seven days before the expiry of the custody time limit imposed under this Part, make an application to the subordinate court or the High Court, as the case may be, for extension or further extension of that time limit.(2)Upon an application under subsection (1), the subordinate court or the High Court, as the case may be, may extend or further extend the custody time limit imposed under this Part if it is satisfied that there is good and sufficient cause for doing so.(3)Any extension or extensions of custody time limits under this section shall not exceed in total a period of thirty days.161I. Bail on expiry of custody time limit
At the expiry of a custody time limit or of any extension thereof, the Court may of its own motion or on application by or behalf of the accused person or on information by the prosecution, grant bail to an accused person.
161J. Application of general law on bail
Nothing in this Part shall preclude an accused person in lawful custody from otherwise applying for bail under any other law during the subsistence of a custody time limit.
Part V – Mode of taking and recording evidence in inquiries and trial
162. Evidence to be taken in presence of accused
Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his legal practitioner, if any.
163. Manner of recording evidence before magistrate
In inquiries and trials, other than trials under section 159, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner—
(a)the evidence of each witness shall be taken down in writing in the language of the court by the magistrate, or in his presence and hearing under his personal direction and superintendence, and shall be signed by the magistrate, and shall form part of the record;(b)such evidence shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative:
Provided that the magistrate may, in his discretion, take down or cause to be taken down any particular question and answer.
164. Interpretation of evidence to accused or his legal practitioner
(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 a language understood by him.(2)If he appears by legal practitioner and the evidence is given in a language other than the language of the court, and not understood by the legal practitioner, it shall be interpreted to such legal practitioner in the language of the court.(3)When documents are put in for the purpose of formal proof it shall be in the discretion of the court to interpret as much thereof as appears necessary.165. Cases heard by one magistrate continued by another magistrate
(1)Subject to subsections (2) and (3) respectively, wherever any magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein and is succeeded, whether by virtue of an order of transfer under this Code or otherwise, by another magistrate who has and who exercises such jurisdiction, the succeeding magistrate may act on the evidence so provided by his predecessors, or partly recorded by his predecessor and partly himself, or he may re-summon the witnesses and after recording the reasons for the first mentioned magistrate’s ceasing to exercise jurisdiction recommence the inquiry or trial.(2)In any trial the succeeding magistrate shall, save where he is of the opinion that the presence of a witness cannot be obtained without an amount of delay or expense which, in the circumstances of the case, he considers unreasonable, re-summon and release the witness or any of them if so requested by an accused.(3)The High Court may, whether there be an appeal or not, set aside an conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was heard, if it is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial.166. Sentence by one magistrate of person convicted by another magistrate
Whenever any magistrate who has presided at any trial which has resulted in the conviction of the accused, ceases to exercise jurisdiction before sentence has been passed, and is succeeded, whether by virtue of an order of transfer under this Code or otherwise, by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may sentence the accused or may make any order in such case which he could have made if he himself had convicted the accused.
167. Record of evidence in High Court and subordinate courts
The Chief Justice may from time to time, by rules, prescribe the manner in which evidence shall be taken down in cases coming before the High Court and subordinate courts and the judges and magistrates, as the case may be, shall take down the evidence or the substance thereof, in accordance with such rules.
Part VI – Evidence in criminal proceedings
168. Application of this part
This Part shall apply to all criminal proceedings in or before the High Court and all subordinate courts.
169. When a fact said to be proved, disproved and not proved
(1)A fact is said to be proved when, after considering the matters before it, the court or jury, as the case may be, either believes it to exist or to have existed or considers its existence at the relevant time so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists or existed.(2)A fact is said to be disproved when, after considering the matter before it, the court or jury, as the case may be, either believes that it does not exist or did not exist or considers its non-existence at the relevant time so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist or did not exist at the relevant time.(3)A fact is said to be not proved when it is neither proved nor disproved.(4)"Sufficient evidence" when used in relation to a fact means evidence by reason of which the court or jury, as the case may be, regards such fact as proved, unless and until it is disproved.170. Presumptions
(1)Whenever it is provided by this Code that the court or jury, as the case may be, may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.(2)Whenever it is directed by this Code that the court or jury, as the case may be, shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.(3)When one fact is declared by this Code to be conclusive proof of another, the court or jury, as the case may be, shall on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.(4)A court or jury, as the case may be, may presume the existence of any fact which it thinks likely to have happened, regard being had to the course of natural events, human conduct and public and private business, in relation to the facts of a particular case.171. Relevancy of facts
(1)Subject to any other law, evidence may be given in any proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others.(2)Facts are relevant which—
(a)though not themselves in issue, are so connected with a fact in issue as to form part of the same transaction, whether they occurred at the same time and place or at different times and places;(b)are the occasion, the cause or the effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction;(c)show or constitute a motive or preparation for any fact in issue or relevant fact;(d)in so far as they are necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of persons by whom any such fact was transacted;(e)though not otherwise relevant—
(i)are inconsistent with any fact in issue or relevant fact;(ii)by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable;(f)show the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or show the existence of any state of body or bodily feeling, when the existence of any such state of mind or body or such bodily feeling is in issue or relevant;(g)where there is a question as to the existence of any right or custom, show or constitute—
(i)any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;(ii)particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from;(h)when there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, show that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned;(i)when there is a question whether a particular act was done, show the existence of any course of business, according to which it naturally would have been done.(3)The conduct of any person is relevant in reference to any fact in issue, and the conduct of any person, an offence against whom is the subject of any proceeding, is relevant if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto. When the conduct of any person is relevant, any statement made to him, or in his presence and hearing, which affects such conduct, is relevant. Subject to any other provisions of this Code relating to the relevancy of statements, the expression "conduct" in this subsection does not include statements, unless those statements accompany and explain acts other than statements.(4)Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence anything said, done or written by one of such persons in reference to their common intention after the time when such intention was first entertained by any one of them is a relevant fact against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.172. Admissibility of evidence
(1)When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.(2)If the fact to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first-mentioned unless the party undertakes to give proof of such fact and the court is satisfied with such undertaking.(3)If the relevancy of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved or require evidence to be given of the second fact before evidence is given of the first fact.173. Statement of person who cannot be called as witness
A statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, is itself a relevant fact—
(a)when the statement was made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in a case in which the cause of that person’s death comes into question and whether the person who made it was or was not, at the time when the statement was made, under expectation of death and whatever may be the nature of the criminal proceeding in which the cause of his death comes into question;(b)when the statement was made by such person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty, or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;(c)when the statement was against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;(d)when the statement gave the opinion of such person as to the existence of any public right or custom, or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;(e)when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge and when the statement was made before the question in dispute was raised;(f)when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased persons belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;(g)when the statement is contained in any deed, will or other document which relates to any transaction by which any right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence; and(h)when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
174. Relevancy of statements made in special circumstances
(1)A statement contained in any entry in a book of account, regularly kept in the course of business, is a relevant fact whenever it refers to a matter into which the court has to inquire, but such statement shall not alone be sufficient evidence to charge any person with liability.(2)An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.(3)A statement of fact in issue or relevant fact, made in a published map or chart generally offered for public sale or in a map or plan made under the authority of the Government, as to matters usually represented or stated in such maps, charts or plans, is itself a relevant fact.(4)When the court or jury, as the case may be, has to form an opinion as to the existence of any fact of a public nature, any statement of it—
(a)made in a recital contained in any Act; or(b)in the notification by or on behalf of the Government published in the Gazette; or(c)in any printed paper purporting to be a Government Gazette or publication of similar effect,is a relevant fact.
(5)When a court or jury, as the case may be, has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be published under the authority of the Government of such country and to contain any such law and any report of any ruling of the courts of such country contained in a book purporting to be a report of such ruling are relevant.175. Proof of facts by written statement
(1)In any criminal proceeding, a written statement by any person shall, if such of the conditions mentioned in subsection (2) as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person.(2)The said conditions are—
(a)the statement purports to be signed by the person who made it;(b)the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he willfully stated in it anything which he knew to be false or did not believe to be true;(c)before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and(d)none of the other parties, within seven days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section:Provided that the conditions mentioned in paragraphs (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be so tendered.
(3)Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—
(a)the party by whom or on whose behalf a copy of the statement was served may call that person to give evidence; and(b)the court may, of its own motion or on the application, made before or at the hearing, of any party to the proceedings require that person to attend before the court to give evidence.(4)So much of any statement as is admitted in evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing.(5)A document required by this section to be served on any person may be served—
(a)by delivering it to him or to his legal practitioner;(b)by addressing it to him and leaving it at his usual or last known place of abode or place of business or, in a case where he has given an address for service, at that address;(c)by sending it in a prepaid registered letter or by the recorded delivery service addressed to him at his usual or last known place of abode or place of business, or, in a case where he has given an address for service, at that address; or(d)in the case of a body corporate by serving it in one of the manners prescribed for the service of a summons upon such body corporate by section 91.(6)Section 101 of the Penal Code (false statements by any person lawfully sworn as a witness or as an interpreter in any judicial proceedings) shall apply in relation to the making by any person of a written statement tendered in evidence by virtue of this section as it applies in relation to the making of an oral statement by a person lawfully sworn as a witness.176. Confessions
(1)Evidence of a confession by the accused shall, if otherwise relevant and admissible, be admitted by the court notwithstanding any objection to such admission upon any one or more of the following grounds (however expressed) that such confession was not made by the accused or, if made by him, was not freely and voluntarily made and without his having been unduly influenced thereto.(2)No confession made by any person shall be admissible as evidence against any other person except to such extent as that other person may adopt it as his own.(3)Evidence of a confession admitted under subsection (1) may be taken into account by a court, or jury, as the case may be, if such court or jury is satisfied beyond reasonable doubt that the confession was made by the accused and that its contents are materially true. If it is not so satisfied, the court or the jury shall give no weight whatsoever to such evidence. It shall be the duty of the judge in summing up the case specifically to direct the jury as to the weight to be given to any such confession.(4)Nothing in this section except subsection (2) shall apply to any confession made by an accused at his trial or in the course of any preliminary inquiry relating thereto.177. Evidence of persons who are seriously ill
(1)Notwithstanding the provisions of this Code, a magistrate shall take a statement on oath of a person who—
(a)is sufficiently proven "to be seriously" ill;(b)is certified by a medical practitioner that he is unlikely to recover from such illness;(c)is liable and willing to give material information in respect of an offence or an accused person; and(d)it is impracticable to examine or take his deposition in accordance with this Code.(2)The magistrate shall, on taking the statement under subsection (1) —
(a)give the reasons for taking such statement;(b)record the names of witnesses, if any;(c)indicate the date and place of taking such statements; and(3)The statement taken under this section may be read in evidence for or against an accused upon proof of death or infirmity, as the case may be, of the person who made such statement:Provided that—
(a)the statement may be read before the magistrate who took it;(b)it is proved to the satisfaction of the court that reasonable notice of the intention to take the statement was given to the party against whom it is proposed to be read in evidence; and(c)the party against whom the statement is proposed to be read in evidence had an opportunity, if he were to be present, himself or by his legal practitioner, to cross-examine the person who made such statement.178. Relevancy of certain evidence for proving in subsequent proceeding the truth of facts stated therein
(1)Evidence given by a witness in criminal proceedings, or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent criminal proceeding or in a later stage of the same proceeding the truth of the facts which it states, when such evidence is the evidence of a witness conditionally bound over to attend under section 278, and his attendance has not been duly required, or when the witness is dead, or is absent from Malaŵi, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.(2)Subsection (1) shall apply on condition that—
(a)the proceeding was between the same prosecutor and accused;(b)the adverse party in the first proceeding had the right and opportunity to cross examine; and(c)the question in issue were substantially the same in the first as in the second proceedings.(3)For the avoidance of possible doubt, it is declared that a preliminary inquiry and any trial for any offence charged in any charge by the Director of Public Prosecutions on such inquiry are stages of the same criminal proceedings.179. Admissibility of photographs, plans
A photograph or plan relating to any matter which is relevant to the issue in any proceedings shall be admissible in evidence at any stage of such proceedings if the evidence of any person who is a competent and compellable witness in such proceedings and upon whose indications or observations such photograph or plan was taken or prepared is given either before or after such photograph or plan is put in by the party tendering such evidence.
180. Admissibility of the reports of experts
(1)Whenever any facts ascertained by any examination, including the examination of any person or body, or by any process requiring any skill in pathology, bacteriology, biology, chemistry, medicine, physics, botany, astronomy or geography or any body of knowledge or experience sufficiently organized or recognized as a reliable body of knowledge or experience and the opinions thereon of any person having that skill are or may become relevant to the issue in any criminal proceedings, a document purporting to be a report of such facts and opinions, by any person qualified to carry out such examination or process (in this section referred to as an "expert") who has carried out any such examination or process shall, subject to subsection (5), on its mere production by any party to those proceedings, be admissible in evidence therein to prove those facts and opinions if one of the conditions specified in subsection (3) is satisfied.(2)The Minister of Health may by notice appoint any person for the time being holding the office of Chief Clinical Officer, Senior Clinical Officer or Clinical Officer to be a medical expert for the purposes of this section. A person so appointed shall be deemed qualified to carry out medical examinations and post-mortem examinations.(3)The conditions referred to in subsection (1) are—
(a)that the other parties to the proceedings consent; or(b)that the party proposing to tender the report has served on the other parties a copy of the report and, by endorsement on the report or otherwise, notice of his intention to tender it in evidence and none of the other parties has, within seven (7) days from such service, served on the party so proposing a notice objecting to the report being tendered in evidence under this section.The provisions of section 175 (5) shall apply to service under this subsection.
(4)Notwithstanding that a report may be admissible as evidence under this section—
(a)the party by whom or on whose behalf a copy of the report was served may call the author thereof to give evidence;(b)the court may, of its own motion or on the application, made before or at the hearing, of any party to the proceedings
(i)summon the expert, if in Malaŵi, to give oral evidence;(ii)if the expert is not in Malaŵi, cause written interrogatories to be submitted to him for reply.Any such interrogatories and any reply thereto purporting to be a reply from such expert shall, subject to all just exceptions, likewise be admissible in evidence.
(5)The admissibility of any report under subsection (1) shall not be affected by any neglect or failure of the expert concerned to appear in answer to any summons or to answer any interrogatories under subsection (4) if it is shown to the satisfaction of the court that he is dead, absent from Malaŵi, incapable of giving evidence, cannot be found, is being kept out of the way by the adverse party or his attendance cannot be obtained without any amount of delay or expense which, in the circumstances of the case, the court considers unreasonable, but save as aforesaid the court may refuse to admit in evidence the report of an expert who fails to attend court or reply to interrogatories after having been required to do so under subsection (4).(6)Nothing in this section shall—
(a)affect the admissibility of evidence under the provisions of sections 173, 175, 177, 178 or sections 204 to 208 (inclusive);(b)be deemed to affect any provision of this or any other written law under which any certificate or other document is made admissible in evidence and the provisions of this section shall be construed in addition to, and not in substitution of, any such provision.
181. How previous convictions may be proved
(1)A previous conviction may be proved in any legal proceeding against any person by producing a record or extract of such conviction and by giving proof of the identity of the person against whom the conviction is sought to be proved with the person appearing in the record or extract of conviction to have been convicted.(2)A record or extract of a conviction shall consist of a certificate in such form, if any, as may be prescribed containing the substance and effect only (omitting any formal part of the charge and conviction) and purporting to be signed, in the case of a conviction by the High Court, by the Registrar of the High Court or other officer having the custody of the records of the court and, in the case of any other conviction, by the clerk or other officer having custody of the records of the court by which such conviction was made.(3)A record or extract of any conviction made in pursuance of this section shall be admissible in evidence without proof of the signature or official character of the person appearing to have signed the same.(4)The mode of proving a previous conviction authorized by this section shall be in addition to and not in exclusion of any other authorized mode of proving such a conviction.(5)A conviction made before the day upon which this section came into operation may be proved in the same manner as if it had taken place after such day.182. Judicial notice
(1)No fact of which the court or the jury, as the case may be, will take judicial notice need be proved.(2)A court or a jury, as the case may be, shall take judicial notice of the following facts—
(a)all Acts enacted by the Parliament of Malaŵi and all subsidiary legislation made under those Acts;(b)all Acts of Parliament of the United Kingdom, Orders in Council, laws, statutory instruments or subsidiary legislation now or heretofore in force in Malaŵi;(c)the course of proceedings of Parliament, and of local government authorities established under Chapter XIV of the Constitution and of other authorities in Malaŵi established under law for the purpose of making laws including subsidiary legislation;(d)the accession to office, name, titles, functions and signature of the President;(e)the accession to office, names, titles, functions and signature of the persons filling for the time being any public office in any part of Malaŵi if the fact of their appointment to such office is notified in the Gazette;(f)the seals of all the courts of Malaŵi duly established and all seals which any person is authorized to use by any Act or other written law;(g)public holidays declared under the Public Holidays Act ;(h)the territories of the commonwealth;(i)the existence, title and national flag of every state or sovereign recognized by the Government;(j)the divisions of time and the geographical divisions of the world;(k)the commencement, continuance and termination of between the State of Malaŵi and any other state or body of persons;(l)the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process and of all legal practitioners and other persons authorized by law to appeal or act before it; and(m)the rule of the road on land or water.(3)In all cases as are mentioned in subsection (2) and also on matters of public history, literature, science or art, the court or jury, as the case may be, may resort for its aid to appropriate books or documents of reference.(4)If the court or jury, as the case may be, is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.183. Proof by formal admission
(1)Subject to this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecution or the accused, and the admission of any such fact under this section shall be conclusive evidence in those proceedings of the fact admitted.(2)An admission under this section—
(a)may be made before or at the proceedings;(b)if made otherwise than in court, shall be in writing;(c)if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;(d)if made on behalf of a defendant who is an individual, shall be made by his legal practitioner;(e)if made before the trial by a defendant who is an individual, must be approved by his legal practitioner either at the time it was made or subsequently.(3)An admission under this section for the purpose of proceedings relating to any matter shall be treated as admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal, review or retrial).(4)An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.(5)In this section "director", in relation to any statutory body within the meaning ascribed to that term by section 2 of the Statutory Bodies (Control of Contracts) Act , being a body corporate whose affairs are managed by its members, means a member of that body corporate.184. Hearsay evidence not admissible, etc.
(1)Oral evidence must, in all cases whatever, be direct, that is to say—
(a)if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;(b)if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;(c)if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; and(d)if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.(2)For purposes of subsection (1)—
(a)the opinions of experts expressed in any treatise commonly offered for sale, and grounds upon which such opinions are held, may be proved by the production of such treatises, if the author is dead or cannot be found or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable; and(b)if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for inspection.
185. Previous judgments relevant to bar a second trial
The existence of any judgment, order or decree which by law prevents any court from holding a trial is a relevant fact when the question is whether such court ought to hold such trial.
186. Relevancy of certain judgments conferring legal character, etc.
(1)A final judgment, order or decree of a competent court or in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.(2)Any judgment, order or decree as is mentioned in subsection (1) is conclusive proof—
(a)that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;(b)that any legal character to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;(c)that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declares that it ceased or should cease; and(d)that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares it had been or should be his property.(3)Judgments, orders or decrees, other than those mentioned in subsection (1) are relevant if they relate to matters of a public nature relevant to the inquiry; but except as provided in any other written law such judgments, orders or decrees are not conclusive proof of that which they state.(4)Judgments, orders or decrees, other than those mentioned in section 185 and subsections (1) and (2) of this section are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Code.(5)Any party to a proceeding may show that any judgment, order or decree which is relevant under section 185, or under this section, and which has not been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion.187. Burden of proof
(1)The burden of proving any particular fact lies on the person who wishes the court or jury, as the case may be, to believe in its existence, unless it is provided by any written law that the proof of such fact shall lie on any particular person:Provided that subject to any express provision to the contrary in any written law the burden of proving that a person who is accused of an offence is guilty of that offence lies upon the prosecution.(2)The burden of proving any fact necessary to be proved in order to enable any person to give evidence of another fact is on the person who wishes to give such evidence.188. Burden of proving that case of accused comes within exceptions and facts especially within his knowledge
(1)Where a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him; but so however that—
(a)such burden shall be deemed to be discharged if the court or jury, as the case may be, is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist; and(b)the accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt of the accused in respect of that offence.(2)Nothing in this section shall—
(a)prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the accused is charged; or(b)impose on the prosecution the burden of proving that the circumstances or facts described in subsection (1) do not exist; or(c)affect the burden placed upon an accused to prove a defence of intoxication or insanity.
189. Burden of proving death, partnership, etc.
(1)When the question is whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.(2)When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.(3)When the question is whether persons are partners, landlord and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand or have ceased to stand to each other in those relationships respectively is on the person who affirms it.(4)When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.(5)Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.190. Opinions of experts
(1)When the court or the jury, as the case may be, has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting or fingerprints, the opinions upon that point of persons specially skilled in such foreign law, science, art or anybody of knowledge or experience sufficiently organized or recognized as a reliable body of knowledge or experience or in questions as to identity of handwriting or fingerprints are relevant facts. Such persons are called experts.(2)Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant.(3)The Minister of Health, in his discretion, may by notice published in the Gazette appoint any person for the time being holding the office of Chief Clinical Officer, Senior Clinical Officer or Clinical Officer to be a medical officer for the purposes of this subsection and any such officer shall conduct such post-mortem examinations as the Minister may direct and any opinion stated by such officer touching upon any such examination or matters arising therefrom, shall be receivable in evidence as the opinion of an expert.191. Opinions as to handwriting, customs, tenets, etc.
(1)When the court or the jury, as the case may be, has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact. A person shall be held to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.(2)When the court or the jury, as the case may be, has to form an opinion as to the existence of any general custom or right, including customs or rights common to any considerable class of persons, the opinions as to the existence of such custom or right, of persons who would be likely to know of its existence, if it existed, are relevant.(3)When the court or the jury, as the case may be, has to form an opinion as to—
(a)the usages and tenets of any body of men or family;(b)the constitution and government of any religious or charitable foundation; or(c)the meaning of words or terms used in particular areas or by particular classes of people,the opinions of persons having special means of knowledge thereon are relevant facts.
(4)When the court or the jury, as the case may be, has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact:Provided that such an opinion shall not be sufficient to prove a marriage in prosecutions under section 162 of the Penal Code .(5)Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.192. Character of the accused
(1)In criminal proceedings, the fact that the accused is of good character is relevant.(2)Subject to section 193, in criminal proceedings the fact that the accused has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.(3)Notwithstanding subsection (2), a conviction for any offence becomes relevant after conviction in the case under trial, for the purpose of affecting the sentence to be imposed by the court.(4)Subsections (1), (2) and (3) do not apply to cases in which the bad character of any person is a fact in issue.(5)A previous conviction is relevant as evidence of bad character.(6)Except as expressly provided in this Code, evidence of character may be given only of general reputation and general disposition and not of particular acts by which reputation or disposition were shown.193. Evidence by accused for the defence
(1)Every accused shall be a competent witness for the defence at every stage of the proceedings, whether charged solely or jointly with any other person; but an accused shall not be called in pursuance of this section except on his own application or by a court under section 256 or 314.(2)An accused called as a witness in pursuance of this section, or in pursuance of section 255 (1) or 314—
(a)may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;(b)shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that he is then charged, or is of bad character, unless—
(i)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged; or(ii)he has personally or by his legal practitioner asked questions of the witness for the prosecution with a view to establishing his own good character, or has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the complainant or the witnesses for the prosecution; or(iii)he has given evidence against any other person charged with the same offence.(3)Every accused called as witness in pursuance of this section, or pursuance of section 255 (1) or 314, shall unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence.193A. Evidence of alibi
(1)As early as is reasonably practicable and in any event prior to the commencement of the trial, the defence shall notify the prosecution of its intent to enter the defence of alibi.(2)The notification under subsection (1) shall specify the place or accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi.(3)Failure by the defence to provide notification of the defence of alibi as required by this section shall not limit the right of the accused at any time during trial to rely on such defence.194. Evidence by husband and wife of an accused
A husband or wife of an accused shall be a competent and compellable witness for the prosecution or for the defence at every stage of any proceedings:Provided that such husband or wife shall not be called as a witness for the defence except upon the application of the accused.
195. Summons for witness
If it is made to appear that evidence material to any criminal cause or matter before, or pending before, any court can be given by, or is in the possession of, any person, it shall be lawful for a police officer of the rank of Assistant Superintendent or above, or the Registrar of the High Court, or the magistrate having cognizance of such cause or matter, to issue a summons to such person requiring his attendance before such court or requiring him to bring and produce to such court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons.
196. Warrant for witness who disobeys summons
If, without sufficient excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him before the court at such time and place as shall be specified in the warrant.
197. Warrant for witness in first instance
If the court is satisfied by evidence on oath that a person summoned as a witness under section 195 will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be specified in the warrant.
198. Mode of dealing with witness arrested under warrant
When any witness is arrested under a warrant the court may, on his furnishing security by recognizance to the satisfaction of the court or of a police officer of the rank of Assistant Superintendent or above for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish such security, order him to be detained for production at such hearing.
199. Power of court to order prisoner to be brought up for examination
(1)Any court desirous of examining as a witness, in any case pending before it, any person confined in any prison may issue an order to the officer in charge of such prison requiring him to bring such prisoner in proper custody, at a time to be named in the order, before the court for examination.(2)The officer so in charge, on receipt of such order, shall act in accordance therewith and shall provide for the safe custody of the prisoner during his absence from the prison for the purpose aforesaid.200. Penalty for non-attendance of witness
(1)Any person summoned to attend as a witness 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 adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine of K10,000.(2)Such fine shall be levied by attachment and sale of any movable property belonging to such witness.(3)In default of recovery of the fine by attachment and sale the witness may, by order of the court, be imprisoned as a civil prisoner for a term of fifteen (15) days unless such fine is paid before the end of the said term.(4)For good cause shown, the High Court may remit or reduce any fine imposed under this section by a subordinate court.201. Power to summon material witness present
(1)Subject to subsection (2), any court may, of its own motion at any stage of any inquiry, trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.(2)The prosecution or the accused or his legal practitioner shall have the right to cross-examine such person, and the court shall adjourn the case for such time, as it thinks necessary to enable such cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of such person as witness.(3)In exercising the powers conferred on it under subsection (1), the court shall be governed by the interests of justice and, in particular shall avoid taking over the prosecution of the case.202. Refractory witnesses
(1)Whenever a person, appearing either in obedience to a summons or by virtue of a warrant or being present in court and being verbally required by the court to give evidence—
(a)refuses to be sworn; or(b)having been sworn, refuses to answer any question put to him; or(c)refuses or neglects to produce any document or thing which he is required to produce; or(d)refuses to sign his deposition, without in any such case offering any sufficient excuse for such refusal or neglect,the court may adjourn the case for a period not exceeding eight days, and may in the meantime commit such person to prison, unless he sooner consents to do what is required of him.
(2)If such person, upon being brought before the court at or before such adjourned hearing, again refuses to do what is required of him, the court may, if it sees fit, again adjourn the case and commit him for the like period, and so again from time to time until such person consents to do what is so required of him.(3)Nothing in this section shall affect the liability of such person to any other punishment or proceeding for refusing or neglecting to do what is so required of him, or shall prevent the court from disposing of the case in the meantime according to any other sufficient evidence taken before it.(4)Nothing in this section shall apply to the accused, if having elected to give evidence, he refuses or neglects to be sworn or to answer any question or to do any other thing required of him in pursuance of section 255, 256, or 314.203. Power to take evidence in abscence of accused
(1)If it is proved that an accused has absconded, and that there is no immediate prospect of arresting him, the court competent to try him or commit him for trial for the offence complained of may, in his absence, examine the witnesses produced on behalf of the prosecution, and record their depositions.(2)Depositions taken under subsection (1) may, on the arrest of the 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.(3)If it appears that an offence punishable with death or imprisonment for a term of not less than seven years has been committed by some person or persons unknown, the High Court may direct that any magistrate shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence if the deponent is dead or incapable of giving evidence or beyond the limits of Malaŵi.204. Issue of commission for examination of witness within Malaŵi
Whenever in the course of any proceeding under this Code the High Court or a subordinate court is satisfied that the examination of a witness is necessary in the interests 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, the High Court or subordinate court may issue a commission to any magistrate to take the evidence of such witness.
205. Duties of magistrate to whom commission issued
The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in the case of a trial.
206. Parties to examine witness
(1)The parties to any proceeding under this Code in which a commission under section 204 is issued may respectively forward any interrogatories in writing which the court directing the commission may think relevant to the issue, and the magistrate to whom the commission is directed shall examine the witness upon such interrogatories.(2)Any party mentioned in subsection (1) may appear before the magistrate by his legal practitioner, or if not in custody, in person, and may examine, cross-examine and re-examine, as the case may be, the said witness.207. Return of commission
After any commission issued under section 204 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the court by which it was 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.
208. Examination of witnesses outside Malaŵi
(1)Whenever in the course of any proceedings under this Code the High Court is satisfied that the examination of a witness outside Malaŵi is necessary in the interests of justice, the High Court may issue an order for the examination of such witness to a court of competent jurisdiction outside Malaŵi under, and in accordance with, the Evidence by Commissions Act , or any other time being in force relating to the taking of evidence in criminal proceedings outside Malaŵi.(2)Whenever in the course of any proceedings under this Code before a magistrate it appears that the examination of a witness outside Malaŵi is necessary in the interests of justice, such magistrate shall apply to theHigh Court, stating the reasons for the application, and the High Court may issue an order under subsection (1) for the examination of such witness.209. Adjournment of proceedings
Where a commission is issued under section 204 or an order is made under section 208, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission or of compliance with the order.
210. Who may testify
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by immature or extreme old age, disease, whether of mind or body, or any cause of the same kind, subject however in the case of persons of immature age to section 6 of the Oaths, Affirmations and Declarations Act , relating to the reception of their unsworn evidence.
211. Dumb witnesses
A witness who is unable to speak may give his evidence in any manner in which he can make it intelligible, as by writing or by signs; but such writing must be written, and the signs made, in open court. Evidence so given shall be deemed to be oral evidence.
212. Number of witnesses
Subject to this Code and any other law for the time being in force, no particular number of witnesses shall in any case be required for the proof of any fact.
213. Order of examination of witnesses
The order in which witnesses are produced and examined shall be regulated by Parts VII to X inclusive and, subject thereto, by the discretion of the court.
214. Examination, cross-examination and re-examination
(1)The examination of a witness by the party who calls him shall be called his examination-in-chief.(2)The examination of a witness by the adverse party shall be called cross-examination.(3)The examination of a witness subsequent to the cross-examination, by the party who called him, shall be called his re-examination.(4)Subject to this Code, a witness shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.(5)The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.(6)The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.(7)When a witness is cross-examined, he may in addition to the questions elsewhere in this Part referred to, be asked any questions which tend—
(b)to discover who he is and what is his position in life;(c)to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. When any such question relates to a matter relevant to the proceeding, section 228 shall apply thereto.
215. Court to decide when questions shall be asked and when witness compelled to answer
(1)If any question asked under section 214 (7) relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the court shall have regard to the following considerations—
(a)such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court or jury, as the case may be, as to the credibility of the witness on the matter to which he testifies;(b)such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the court or jury, as the case may be, as to the credibility of the witness on the matter to which he testifies;(c)such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;(d)the court or jury, as the case may be, may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.(2)No such question as is referred to in subsection (1) may properly be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.(3)The court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.(4)The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.216. Cross-examination of persons summoned to produce a document
A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.
217. Leading questions
Any person suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
218. When leading questions may be asked
(1)In any trial before the High Court leading questions must not, if objected to by the adverse party, be asked in examination-in-chief or in re-examination, except with the permission of the Court.(2)In any trial before a subordinate court leading questions must not, if objected to by the adverse party, be asked in examination-in-chief or in re-examination.(3)The High Court or a subordinate court shall permit leading question as to matters which are introductory or undisputed, or which have, in its opinion, already been sufficiently proved.(4)Leading questions may be asked in cross-examination without permission of the court in trials before the High Court and subordinate courts.219. Evidence as to matters in writing and cross-examination as to previous writings
(1)Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to document which, in the opinion of the court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts that have been proved which entitle the party who called the witness to give secondary evidence of it; but a witness may give oral evidence of statements made by other persons about the contents of documents if such statements are themselves relevant facts.(2)A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.220. Communication during marriage
A husband shall not be compelled to disclose any communication made to him by his wife during their marriage and a wife shall not be compelled to disclose any communication made to her by her husband during their marriage.
223. Judges, magistrates, police and revenue officers
(1)No judge or magistrate shall, except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as such judge or magistrate, or as to anything which came to his knowledge in court as such judge or magistrate; but he may be examined as to other matters which occurred in his presence while he was so acting.(2)No magistrate or police officer shall be compelled to disclose the source or origin from which he received any information as to the commission of any offence, and no revenue officer shall be compelled to disclose the source or origin from which he received any information as to the commission of any offence against the public revenues.224. Professional communications
(1)No legal practitioner shall at any time be permitted, unless with his client’s consent, to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of such employment.(2)Nothing in this section shall protect from disclosure—
(a)any such communication in furtherance of any illegal purpose; and(b)any fact observed by a legal practitioner in the course of his employment as such, showing that any crime or fraud had been committed since the commencement of his employment.(3)It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client and the obligation referred to in this section continues after the employment has ceased.(4)This section applies to interpreters and to the clerks and servants of a legal practitioner.225. Privilege not waived by volunteering evidence
If a party to any proceedings give evidence he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 224 and if any such party calls as a witness any such legal practitioner as is mentioned in section 224, he shall be deemed to have consented to such disclosure only if he questions such legal practitioner on matters which, but for such question, he would not be at liberty to disclose.
226. Confidential communications with legal practitioner
No person shall be compelled to disclose to the court or to the jury any confidential communication, which has taken place between him and any legal practitioner advising or representing him unless he has offered himself as a witness or its giving evidence upon being required to do so under section 256 (1) or section 314 in which case he may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence which he has given and no other.
227. Production of documents another person having possession would refuse
No person shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last-mentioned person consents to their production.
228. Witness not excused from answering question on ground that answer will incriminate
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue upon the ground that the answer to such question will incriminate, or may tend directly or indirectly to incriminate, such witness, or that it will expose such witness to a penalty or forfeiture of any kind, or that it may establish or tend to establish that he owed a debt or is otherwise subject to a civil suit:Provided that no such answer which a witness shall be compelled to give may subject him to any arrest or prosecution or be proved against him in any subsequent criminal proceeding, except a prosecution for giving false evidence by such answer.
229. Exclusion of evidence to contradict answers to questions testing veracity
When a witness has been asked and has answered a question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict his answer; but, if he answers falsely, he may afterwards be charged with giving false evidence:Provided that—
(a)if a witness is asked whether he has been previously convicted of any crime, and denies it, evidence may be given of his previous conviction;(b)if a witness is asked a question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
230. Question by party to his own witness if hostile
The court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
231. Impeaching credit of witness
(1)The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him—
(a)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;(b)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;(c)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.(2)A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.232. Evidence tending to corroborate evidence of relevant fact admissible
(1)When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.(2)Evidence of a statement made at the time when, or shortly before, or shortly after an offence is alleged to have been committed and directly relating to a fact relevant in the case is admissible if it was made by a person who is a witness and if such statement is used for showing its consistency with his evidence.233. Former statements of witness may be proved to show consistency of later testimony as to same fact
In order to show the consistency of the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
234. What matters may be proved in connexion with proved statement relevant under section 173 or 178
Whenever any statement, relevant under section 173 or 178 is proved, all matters may be proved either in order to contradict or to collaborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
235. Refreshing memory
(1)A witness may, with the permission of the court, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or as soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.(2)The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.(3)Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document if the court is satisfied that there is sufficient reason for non-production of the original.(4)An expert may refresh his memory by reference to professional treatises.(5)A witness may also testify to facts mentioned in any such documents as are mentioned in this section although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the documents.(6)Subject to the provisions of this Code or any other written law to the contrary, any writing referred to under this section must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.236. Giving as evidence document called for and produced on notice
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing is requires him to do so.
237. Using as evidence document production of which was refused on notice
When a party has refused to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court.
238. Court’s power to put questions or order production
(1)The judge or magistrate may, in order to discover or obtain proof of relevant facts—
(a)ask any question it pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant;(b)order production of any document or thing,and neither party shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question.
(2)Notwithstanding subsection (1)—
(a)any judgment entered under this section must be based upon facts declared by this Code to be relevant, and duly proved;(b)this section shall not authorize any judge or magistrate to—
(i)compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or to produce under section 193 (2) or under sections 219 to 227, inclusive, if the question were asked or the documents were called for by the adverse party;(ii)ask any question which it would be improper for any person to ask under section 229;(iii)dispense with primary evidence of any document, except in the cases hereinbefore excepted.
240. No new trial for improper admission or rejection of evidence
The improper admission or rejection of evidence shall not be ground of itself for a new trial, or reversal of any decision in any case, if it shall appear to the court before such objection is raised that, independently of the evidence objected to and admitted, there evidence to justify the decision or that, if the rejected evidence had been received, it ought not to have varied the decision.
241. Production of document
(1)A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility and the validity of any such objection shall be decided by the court.(2)The court, if it sees fit, may inspect the document or take other evidence to enable it to determine its admissibility.(3)If, for the purpose of subsection (2), it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the content secret, unless the document is to be given in evidence; and if he disobeys such directions, he shall be held to be in contempt of court.242. Accomplice
An accomplice shall be a competent witness against an accused person; and a conviction shall not be set aside merely because it proceeds upon the uncorroborated testimony of an accomplice:Provided that the court shall take recognizance of the fact that it is unsafe to convict an accused on the uncorroborated evidence of an accomplice, and shall weigh the evidence, and if it comes to the conclusion that the evidence of the accomplice, although uncorroborated, is true, it may be used as a basis of a conviction.
243. What evidence is to be given when a statement forms part of a conversation, document, etc.
When any statement of which evidence is given forms part of a longer statement or of a conversation or of an isolated document, or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and the circumstances in which it was made.
244. Corroboration in cases of sedition, perjury, etc.
(1)No person shall be convicted of an offence under section 51 of the Penal Code (which relates to seditious offences) on the uncorroborated testimony of one witness.(2)No person shall be convicted of committing perjury or subornation of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.245. Rules relating to documentary evidence
(1)The Chief Justice may make rules relating to documentary evidence in criminal proceedings under this Code.(2)In particular and without prejudice to the generality of the power conferred by subsection (1), such rules may provide for—
(a)the admission of documentary evidence in criminal proceedings under this Code;(b)the manner in which documentary evidence is to be proved;(c)notices for the production of documentary evidence;(d)the proof of public and private documents and copies thereof;(e)presumptions to be made regarding documentary evidence;(f)the exclusion of oral evidence by documentary evidence;(g)the weight to be given to any particular documentary evidence; and(h)such other matters regarding documentary evidence as may be considered necessary.
Part VII – Procedure in trials before subordinate courts
246. Summary trial procedure
(1)The procedure prescribed in this part shall be observed in trials by subordinate courts whether resulting from a complaint under section 83 (2) or a charge under section 83 (1) or (4).(2)Other relevant provisions of this Code shall apply to trials before subordinate courts, except in so far as express provision is made in this part which in inconsistent with such other relevant provisions.247. Absence of complainant or prosecutor
(1)When proceedings have been instituted under section 83 and, at the time fixed for the hearing of the case or the time to which a hearing is adjourned, the complainant or the prosecutor, as the case may be, is either absent or unable or unwilling to proceed with the case against the accused, the court, if it is satisfied that the complainant or prosecutor has had reasonable notice of the time and place fixed for the hearing, shall, unless it considers there is good reason to adjourn the hearing, discharge the accused.(2)A discharge under subsection (1) shall not operate as a bar to any subsequent proceeding against the accused commenced within twelve months of the date of the discharge on account of the same facts after which period the discharge shall become absolute and operate as an acquittal for all purposes.(3)If the Court is not satisfied as provided in subsection (1) or considers that there is a good reason for adjournment, the court shall adjourn the hearing.248. Abscence of accused
(1)If, upon the day fixed for trial or the day to which the hearing or further hearing is adjourned, the accused shall not appear and, in the case of proceedings originating by summons, it appears to the court by evidence on oath that the summons was duly served a reasonable time before the time appointed for appearing, the court may, instead of directing the issue of a warrant of arrest under section 95, proceed with the hearing or further hearing as if the accused were present:Provided that no sentence of imprisonment, other than a sentence in default of payment of a fine, shall be imposed on any person under this subsection.(2)If the court convicts the accused in his absence, it may set aside such conviction upon being satisfied that such absence was due to causes over which he had no control and that he had a probable defence on the merits.(3)If the accused who has not appeared as is mentioned in subsection (1) is charged with felony, or if the court, in its discretion, refrains from convicting or acquitting the accused in his absence, the court shall issue a warrant for the apprehension of the accused and cause him to be brought before the court.249. Withdrawal of complaint
If a complaint, at any time before a final order is passed in any proceeding conducted by him after complaint made under section 83 (2), satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the same and shall thereupon acquit the accused.
250. Adjournment
(1)The court may in its discretion, before or during the hearing of any case, adjourn the hearing to a time and place to be then stated to the parties.(2)Where the court adjourns the hearing of a case under subsection (1) it may—
(a)release the accused, without security or upon his entering into a bond with or without sureties, at the discretion of the court, conditioned for his appearance at the time and place so stated; or(b)commit the accused to prison.(3)If the accused—
(a)has not been committed to prison, the adjournment under subsection (1) may, with the consent of the parties, be for any period not exceeding three months or, in the absence of the consent of the parties, for a period not exceeding thirty days;(b)has been committed to prison, the adjournment under subsection (1) shall not be for more than fifteen days.(4)The day following that on which any adjournment is made under subsection (3) shall be counted as the first day of the(5)Where a court adjourns any proceedings for a period exceeding the maximum period for which in the circumstances an adjournment may be granted in conformity with subsection (3), the adjournment shall not of itself affect the validity of the proceedings or the power of the presiding magistrate to continue to hear and determine the case.(6)The High Court may, on the application of the court or of either party, or of its own volition, give such directions as it deems necessary for the resumption of adjourned proceedings.251. Plea of guilty
(1)When an accused appears or is brought before a court, a charge containing the particulars of the offence of which he is accused shall be read and explained to him and he shall be asked whether he admits or denies the truth of the charge.(2)If the accused admits the truth of the charge his admission shall be recorded as nearly as possible in the words used by him and he may be convicted and sentenced thereon:Provided that before a plea of guilty is recorded, the court shall ascertain that the accused understands the nature and consequences of his plea and intends to admit without qualification the truth of the charge against him.252. Plea of not guilty
If the accused does not admit the truth of the charge or does not plead, the court shall proceed to hear the case as hereinafter provided.
252A. Rules relating to plea bargaining
(1)The Chief Justice may make rules that shall permit parties to enter into plea bargaining where appropriate.(2)For the purposes of this section "plea bargaining" means the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval and it includes—
(a)the defendant pleading guilty to a lesser offence; or(b)the defendant pleading guilty to only one or more counts of a charge.
253. Evidence for the prosecution
(1)In cases where section 252 applies, the court shall proceed to hear the complainant or the public prosecutor and to take all such evidence as is produced in support of the prosecution.(2)Witnesses for the prosecution, shall be sworn or affirmed in accordance with the Oaths, Affirmations and Declarations Act before they are examined.254. Procedure on close of case for prosecution
(1)If, upon taking all the evidence referred to in section 253 and any evidence which the court may decide to call at that stage of the trial under section 201, the court is of opinion that no case is made out against the accused sufficiently to require him to make a defence, the court shall deliver a judgment in the manner provided for in sections 139 and 140 acquitting the accused.(2)If, when the evidence referred to in subsection (1) has been taken, the court is of opinion that a case is made out against the accused sufficiently to require him to make a defence in respect of the offence charged or some other offence which such court is competent to try and in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend the same, subject to section 151.(3)The charge, if amended, shall be read to the accused, and he shall be asked whether he admits the truth of the charge or has any defence to make.(4)If the accused does not admit the truth of the charge as amended or if no amendment is made, the accused shall be informed by the court that he has the right to remain silent or to give evidence upon oath and if he elects to give evidence upon oath, he shall be asked whether he has any witness to examine or other evidence to adduce in his defence.255. Case for the defence
(1)After the procedure under section 254, the court shall then hear the accused and his witnesses and his other evidence, if any.(2)The witnesses for the defence shall be sworn or affirmed in accordance with the Oaths, Affirmations and Declarations Act before they are examined.(3)The accused shall, without further process, at any time while he is making his defence be allowed to recall and re-examine any witness present in the court or its precincts.(4)If the accused, whether before or after giving evidence, applies to the court to issue any process for—
(a)compelling the attendance of a prosecution witness for cross-examination or re-examination or his witness for examination;(b)production of any document or other thing, the court shall issue such process unless it considers that such application should be refused on the ground that it is for the purpose of the vexation or delay or defeating the interests of justice, in which case grounds shall be recorded by the court in writing.(5)The court may, before summoning a witness pursuant to an application made under subsection (4), require that his reasonable expenses incurred in attending court for the purpose of trial shall be met by the accused and shall be deposited at the court.256. Evidence for the defence
(1)When the court is satisfied that the defence should proceed then, after such address, if any, as the accused or his legal practitioner shall elect to make at the opening of the case, the accused shall, from the witness box, or such other place as the court may see fit to direct, and upon oath, or giving an affirmation, give his evidence and answer any question or produce anything lawfully put to or required of him by the court or in cross-examination.(2)If the accused elects to give evidence and thus becomes a witness in his own defence but refuses or neglects to—
(c)answer any question lawfully put to him by the court or in cross-examination; or(d)produce any document or thing which he is required to produce, such refusal or neglect may be commented upon by the prosecution and may be taken into account by the court in reaching its decision.(3)Where an accused elects to call witnesses other than himself on his behalf, he shall do so after he himself has been called as a witness.257. Evidence in reply
If the accused adduces evidence in his defence introducing new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecution to adduce evidence in reply to rebut the said matter.
258. Addresses
(1)The prosecution shall be entitled, but shall not be required, to address the court before calling evidence.(2)At the close of the evidence for the prosecution, the accused or his legal practitioner may address the court for the purpose of submitting that a case has not been made out against the accused sufficiently to require him to make a defence and the prosecution shall have the right to reply to such submission.(3)When the accused is called upon to make a defence, he or his legal practitioner may—
(a)before producing his evidence, open his case stating the law on which he intends to rely; and(b)if the accused gives evidence or witnesses are examined on his behalf, sum up his case.(4)The prosecution shall have the right to reply on the whole case.259. The decision
(1)The court having heard both the prosecution and the accused and their witnesses and evidence shall, subject to section 37 of the Penal Code , deliver a judgment in the manner provided for in sections 139 and 140 either acquitting or convicting him.(2)If the court acquits the accused, the court shall record the acquittal and shall forthwith release the accused unless if the accused is held on another charge.(3)If the court convicts the accused the court shall record the conviction and pass sentence or make an order against him according to law either forthwith or on such day as the court may appoint.(4)A judgment signed under section 140 or a copy thereof certified by the court or its clerk shall be sufficient evidence in any court for the purposes of section 185 of the conviction or acquittal.260. Evidence for arriving at proper senternce
(1)The court may, before passing sentence, receive such evidence as it thinks fit in order to inform itself as to the sentence proper to be passed.(2)Evidence that the court may receive under subsection (1) may, in addition to the evidence of the accused or the prosecution, include the evidence by or on behalf of the victim of the offence and any relevant reports to enable the court assess the gravity of the offence.261. Prosecution time limits for trials in subordinate courts
(1)Subject to subsections (2) and (3), the trial of any person accused of an offence triable by a subordinate court, other than any other offence punishable by imprisonment of more than three (3) years, shall—
(a)be commenced within twelve months from the date the complaint arose; and(b)be completed within twelve months from the date the trial commenced.(2)Where the person who committed the offence is at large, the period prescribed by subsection (1) within which to commence the trial shall run from the date the person is arrested for the offence.(3)Where the cause of the failure or delay to complete the trial prescribed by subsection (1) is not attributable to any conduct on the part of the prosecution, the court shall order such extension of time as it consider necessary to enable the completion of the trial.(4)A person accused of an offence shall not be liable to be tried, or continue to be tried, for the offence of his trial is not commenced or has not been completed within the period prescribed by subsection (1), and in such case the accused shall stand discharged of the offence at the expiry of such period.261A. Rules relating to procedure in subordinate courts
The Chief Justice may make rules relating to trials before subordinate courts and such rules may provide for—
(b)receiving evidence before sentencing; and(c)disclosure of information of such other matters as may be considered necessary.
Part VIII – Provisions relating to the committal of accused persons for trial before the High Court
262. Power to commit for trial
Any magistrate may commit any person for trial to the High Court.
263. Court to hold preliminary inquiry
Whenever a charge has been brought against a person of an offence not triable by a subordinate court or as to which the subordinate court is of the opinion that it is not suitable to be disposed of upon summary trial, a preliminary enquiry shall be held according to the provisions hereinafter contained by a subordinate court:Provided that no such preliminary enquiry shall be held in any case where the certificate of the Director of Public Prosecutions is produced to a subordinate court in accordance with Part IX.
264. Charge to be read to accused, etc.
At the commencement of a preliminary enquiry the magistrate shall read the charge to the accused but the accused shall not be required to make any reply thereto.
265. Depositions
(1)When the accused charged with an offence described under section 263 comes before a subordinate court, on summons or warrant or otherwise, the court shall, in his presence, take down in writing, or cause to be so taken down, the statements on oath of witnesses, who shall be sworn or affirmed in accordance with the Oaths, Affirmations and Declarations Act .(2)Statements of witnesses so taken down in writing are termed depositions.(3)The accused may put questions to each witness produced against him and the answer of the witness thereto shall form part of such witness’s depositions.(4)If the accused does not employ a legal practitioner, the court shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any question to that witness.(5)The deposition of each witness shall be read over to such witness and shall be signed by him and the magistrate.266. Variance between evidence and charge
(1)No objection to a charge, summons or warrant for the defect in substance or in form, or for variance between it and the evidence of the prosecution, shall be allowed.(2)If the variance to a charge, summons or warrant under subsection (1) appears to the court to be such that the accused has been thereby deceived or misled, the court may, on the application of the accused, adjourn the inquiry and allow any witness to be recalled, and allow such questions to be put to him as by reason of the terms of the charge may have been omitted.267. Remand
(1)If, from the absence of witnesses or any other reasonable cause to be recorded in the proceeding, the court considers it necessary or advisable to adjourn the inquiry, the court may from time to time by warrant remand the accused for a reasonable time, not exceeding fifteen days at any one time, to some prison or other place of security.(2)During a remand the court may at any time order the accused to be brought before it.(3)The court may on a remand admit the accused to bail if the charge is one in respect of which bail may be granted by that court.268. Provisions as to taking statements or evidence of accused
(1)If, after examination of the witnesses called on behalf of the prosecution, the court considers that on the evidence as it stands there are sufficient grounds for committing the accused for trial, the magistrate shall frame a charge under his hand declaring with what offence or offences the accused is charged and shall read the charge to the accused and explain the nature thereof to him in simple language, and address to him the following words or words to the like effect"This is not your trial. You will be tried later in another court and before another judge and a jury, where all the witnesses you have heard here will be produced and you will be allowed to question them. You will then be able to address the court and to give evidence on oath and to call any witnesses on your own behalf. Unless you wish to reserve your defence, which you are at liberty to do, or you do not wish to say anything pursuant to exercising your right to remain silent, you may now either make a statement not on oath, or give evidence on oath, and if you do, you may also call witnesses on your own behalf. If you give evidence on oath you will be liable to cross-examination. Anything you may say whether on oath or not will be taken down and may be used in evidence at your trial.".(2)Before the accused makes any statement in answer to the charge, or gives evidence, as the case may be, 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 have been held out to him to induce him to make any confession of his guilt, but that whatsoever he then says may be given in evidence on his trial notwithstanding any such promise or threat.(3)Everything which the accused says, either by way of statement or evidence, shall be recorded in full and shall be shown or read over to him, and he shall be at liberty to explain or add to anything contained in the record thereof.(4)When the procedure under subsections (1), (2) and (3) is made conformable to what he declares is the truth, the record thereof shall be attested by the magistrate, who shall certify that such statement or evidence was taken in his presence and hearing and contains accurately the whole statement made, or evidence given, as the case may be, by the accused. The accused shall sign or attest by his mark such record. If he refuses, the court shall add a note of his refusal and the record may be used as if he had signed or attested it.269. Evidence and address in defence
(1)Immediately after complying with the requirements of section 268 relating to the statement or evidence of the accused, and whether the accused has or has not made a statement or given evidence, the court shall ask him whether he desires to call witnesses on his own behalf.(2)The court shall take the evidence of any witnesses called by the accused in like manner as in the case of witnesses for the prosecution, and every such witness, not being merely a witness to the character of the accused, shall, if the court be of opinion that his evidence is any way material to the case, be bound by bond to appear and give evidence at the trial of such accused.(3)If the accused states that he has witnesses to call, but that they are not present in court, and the court 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 court may adjourn the enquiry and issue process, or take other steps, to compel the attendance of such witnesses and on their attendance shall take their depositions and bind them by bond in the same manner as witnesses under subsection (2).(4)In any preliminary enquiry under this Part the accused or his legal practitioner shall be at liberty to address the court—
(a)after examination of the witnesses called on behalf of the prosecution;(b)if no witnesses for the defence are to be called, immediately after the statement or evidence of the accused;(c)if the accused elects—
(i)to give evidence or to make a statement and witnesses for the defence are to be called; or(ii)not to give evidence or to make a statement, but to call witnesses,immediately after the evidence of such witnesses.
(5)If the accused or his legal practitioner addresses the court in accordance with subsection (4) (a) or (c) the prosecution shall have the right to reply.(6)Where the accused reserves his defence or elects to exercise the right to remain silent, or at the conclusion of any statement in answer to the charge or evidence in defence, as the case may be, the court shall ask him whether he intends to call witnesses at the trial other than any whose evidence has been taken under this section, and, if so, whether he desires to give their names and addresses so that they may be summoned. The court shall thereupon record the names and addresses of any such witnesses whom he may mention.270. Discharge of accused
(1)If, at the close of the case for the prosecution or after hearing any evidence in defence, the court considers that the evidence against the accused is not sufficient to put him on his trial, the court 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.(2)Nothing in this subsection shall prevent the court either forthwith, or after such adjournment of the enquiry 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 it, or which in the cause of the charge so dismissed as aforesaid, it may appear that the accused has committed.271. Commitment for trial
If, at the close of the case for prosecution or hearing any evidence in defence, the court considers the evidence sufficient to put the accused on trial, the court shall commit him for trial to the High Court and shall, until the trial, either admit him to bail or send him to prison for safe-keeping. The warrant of such first-mentioned court shall be sufficient authority to the officer in charge of any prison appointed for the custody of prisoners committed for trial.
272. Conflict of evidence
Where there is a conflict of evidence, the court 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 guilty, notwithstanding that it is contradicted in material points by evidence in favour of the accused, unless the court, for reasons to be recorded in the proceedings, shall see fit to deviate from this rule.
273. Committal to next sessions
All persons committed for trial by a subordinate court shall be committed for trial at the next convenient sessions of the High Court.
274. Summary adjudication
If, at the close of or during the inquiry, it shall appear to the subordinate court that the offence is of such a nature that it may suitably be dealt with under the powers possessed by the court, the court may, subject to Part VII, hear and finally determine the matter:Provided that in every such case the accused shall be entitled to have recalled for cross-examination all or any of the witnesses for the prosecution.
275. Complainant and witnesses to be bound over
When the accused is committed for trial before the High Court, a subordinate court committing him shall bind by bond, with or without surety or sureties, as it may deem requisite, the complainant and every witness to appear at the trial to give evidence, and also to appear and give evidence, if required, at any further examination concerning the charge which may be held by direction of the Director of Public Prosecutions.
276. Refusal to be bound over
If a person refuses to enter into a bond under section 275, the court may commit him to prison or into the custody of any officer of the court, there to remain until after the trial, unless in the meantime he enters into a bond; but if afterwards from want of sufficient evidence or other cause, the accused is discharged, the court shall order that the person imprisoned for so refusing be also discharged.
277. Accused entitled to copy of depositions
(1)A person who has been committed for trial before the High Court shall be entitled at any time before the trial to have a copy of the depositions.(2)The court shall at the time of committing him for trial inform the accused of the effect of this provision.278. Binding over of witnesses conditionally
(1)Where a person charged before a subordinate court with an offence triable before the High Court is committed for trial, and it appears to such subordinate court, after taking into account anything which may be said with reference thereto by the accused or the prosecutor, that the attendance at the trial of any witness who has been examined before it is unnecessary by reason of anything contained in any statement by the accused or the evidence of the witness being merely of a formal nature, the subordinate court shall, if the witness has not already been bound over, bind him over to attend the trial conditionally upon notice given to him and not otherwise, or shall, if the witness has already been bound over, direct that he shall be treated as having been bound over to attend only conditionally as aforesaid, and shall transmit to the High Court a statement in writing of the names, addresses and occupations of the witnesses who are, or who are to be treated as having been, bound over to attend the trial conditionally.(2)Where a witness has been, or is to be treated as having been, bound over conditionally to attend the trial, the Director of Public Prosecutions or the person committed for trial may be given notice at any time before the opening of the sessions of the High Court to the committing subordinate court and at any time thereafter to the Registrar of the High Court that he desires the witness to attend the trial, and then such court or Registrar to whom any such notice is given shall forthwith notify the witness that he is required so to attend in pursuance of his bond.(3)The subordinate court shall, on committing the accused for trial, inform him of his right to require the attendance at the trial of any such witness as aforesaid, and of the steps which he must take for the purpose of enforcing such attendance.(4)Any documents or articles produced in evidence before the subordinate court by any witness whose attendance at the trial is stated to be unnecessary in accordance with this section and marked as exhibits shall, unless in any particular case the subordinate court otherwise orders, be retained by the subordinate court and forwarded with the depositions to the Registrar of the High Court.279. Transmission of records to High Court and Director of Public Prosecutions
In the event of committal for trial the written charge (if any), the depositions, the statement of the accused, the bond of the accused, the complainant and the witness and any documents or things which have been put in evidence, shall be transmitted without delay by the committing court to the Registrar of the High Court, and an authenticated copy of the written charge, the depositions and the statement of the accused shall also without delay be transmitted to the Director of Public Prosecutions.
280. Power of Director of Public Prosecutions to direct further investigation and to order further depositions
(1)If, after receipt of the authenticated copy of the written charge, the depositions and the statement of the accused provided for by section 279, and before the trial before the High Court, the Director of Public Prosecutions shall be of the opinion that further investigation is required before such trial, it shall be lawful for him to direct that the original depositions be remitted to the court which committed the accused for trial, and such court shall thereupon reopen the case and after taking the depositions of such witnesses as may have been called as a result of such further investigation, dispose of the case in accordance with sections 268 to 278 inclusive.(2)If, after receipt of the authenticated copy of the depositions and statement of the accused and before the trial before the High Court, the Director of Public Prosecutions shall be of opinion that there is, in any case committed for trial, any material or necessary witness for the prosecution or the defence who has not been bound over to give evidence on the trial of the case, the Director of Public Prosecutions may make any application to the subordinate court which committed the accused for trial to take the depositions of such witness and compel his attendance either by summons or by warrant as hereinbefore provided.281. Return of depositions with a view to summary trial
(1)If, before the trial before the High Court the Director of Public Prosecutions is of opinion, upon the record of the committal proceedings received by him, that the case is one which may suitably be tried by a subordinate court, he may cause the court record to be returned to the court which committed the accused, and thereupon the case shall be reopened, tried and determined in the same matter as if such person had not been committed for trial.(2)In every case falling under subsection (1) the accused shall be entitled to have recalled for cross-examination or further cross-examination all or any of the witnesses for the prosecution.282. Filing of a charge
(1)The Director of Public Prosecutions shall forthwith after receipt of the authenticated copy of the depositions referred to in section 279 draw up and sign a charge in accordance with this Code in the form set out in the Third Schedule, which shall be filed in the Registry of the High Cour