CHAPTER 8:01
CRIMINAL PROCEDURE AND EVIDENCE CODE

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Principle on which Code is to be applied

   4.   Finding, etc., not to be set aside merely because proceedings in wrong place

   5.   Finding, etc., not to be reversed, etc., on account of errors not occasioning failure of justice

   6.   Trial of offences under Penal Code and other laws

PART II
POWERS OF COURTS AND SPECIAL AREAS

   7.   Offences under Penal Code

   8.   Power of Chief Justice to order trial before High Court [Repealed by 31 of 1969]

   9.   Offences under laws other than Penal Code

   10.   Sentences and orders which High Court may pass

   11.   Power of certain courts to pass sentence of imprisonment for protection of public

   12.   Combination of sentences

   13.   General jurisdiction of subordinate courts

   14.   Sentences which subordinate courts may pass

   15.   Certain sentences to be confirmed on review by High Court before being given effect, etc.

   16.   Release on bail pending order of the High Court

   17.   Sentences in cases of conviction of several offences at one trial

   18.   Appointment of special areas

   19.   Magisterial powers to officers in charge of special areas

PART III
GENERAL PROVISIONS

   20.   Arrest, how made

   20A.   Information to be supplied on arrest

   20B.   Voluntary attendance at police station

   20C.   Arrest for further offence

   20D.   Additional rights of children and young persons on arrest

   21.   Search of place entered by person to be arrested

   22.   Powers to break open doors and windows for purposes of liberation

   23.   No unnecessary restraint

   24.   Search of arrested persons

   24A.   Entry and search after arrest

   25.   Power of police officer to search and detain aircraft, vessel or vehicle and persons in certain circumstances

   26.   Mode of search of women and men

   27.   Power to seize offensive weapons

   28.   Arrest by police officer without warrant

   29.   Arrest of vagabonds, habitual robbers, etc.

   30.   Procedure when police officer deputes subordinate to arrest without warrant

   31.   Refusal to give name and residence

   32.   Disposal of persons arrested by police officers

   32A.   Powers to release and caution by the police

   33.   Arrest by private person

   34.   Disposal of person arrested by private person

   35.   Detention of persons arrested without warrant

   36.   Police to report apprehensions

   37.   Offence committed in magistrate’s presence

   38.   Arrest by magistrate

   39.   Recapture of person escaping

   40.   Provisions of sections 21 and 22 to apply to arrests under section 39

   41.   Assistance to magistrate or police officer

   42.   Security for keeping the peace

   43.   Security for good behaviour from persons disseminating seditious matters, etc.

   44.   Security for good behaviour from vagrants and suspected persons

   45.   Security for good behaviour from habitual offenders

   46.   Order to be made

   47.   Procedure in respect of person present in court

   48.   Summons or warrant in case of person not so present

   49.   Copy of order under section 46 to accompany summons or warrant

   50.   Power to dispense with personal attendance

   51.   Inquiry as to truth of information

   52.   Order to give security

   53.   Conditions of bonds

   54.   Discharge of person informed against

   55.   Commencement of period for which security is required

   56.   Contents of bond

   57.   Power to reject sureties

   58.   Procedure on failure of person to give security

   59.   Power to release persons imprisoned for failure to give security

   60.   Power of High Court to cancel bond

   61.   Discharge of sureties

   62.   Police to prevent arrestable offences

   63.   Information of design to commit such offences

   64.   Arrest to prevent such offences

   65.   Prevention of injury to public property, etc.

PART IV
PROVISIONS RELATING TO ALL CRIMINAL PROCEEDINGS

   66.   General authority of courts of Malawi

   67.   Powers of High Court

   68.   Place and date of sessions of the High Court

   69.   Ordinary place of inquiry and trial

   70.   High Court to decide in cases of doubt

   71.   Court to be open and may be held on a Sunday

   71A.   Evidence of victims of sexual offences

   72.   Removal of person to another prison by warrant

   73.   Transfer of case to another subordinate court before inquiry or trial and transfer of trial to another subordinate court

   74.   Transfer to another magistrate after commencement of inquiry or trial

   75.   Power of High Court to change venue

   76.   Director of Public Prosecutions

   77.   Power to enter a discontinuance

   78.   Delegation of powers by Director of Public Prosecutions [Repealed by 14 of 2010]

   79.   Power to appoint public prosecutors

   80.   Powers of public prosecutors

   81.   Withdrawal from prosecution in trials before subordinate courts

   82.   Permission to conduct prosecution

   83.   Mode of instituting proceedings

   84.   Issue of summons or warrant

   85.   Form and contents of summons

   86.   Penalty for non-attendance of accused

   87.   Service of summons

   88.   Service when person summoned cannot be found

   89.   Procedure when service cannot be effected as before provided

   90.   Service on servant of Government

   91.   Service of summons on company, etc.

   92.   Proof of service

   93.   Power to dispense with personal attendance of accused

   94.   Warrant after issue of summons

   95.   Summons disobeyed

   96.   Form, contents and duration of warrant of arrest

   97.   Court may direct security to be taken

   98.   Warrants, to whom directed

   99.   Effect of addressing warrant to more than one officer or person

   100.   Execution of warrant directed to police officer

   101.   Notification of substance of warrant

   102.   Person arrested to be brought before the court without delay

   103.   Where warrant of arrest may be executed

   104.   Procedure on arrest of person

   105.   Irregularities in warrant

   106.   Proclamation for person absconding

   107.   Attachment of property of proclaimed person

   108.   Restoration of attached property

   109.   Power to take bond for appearance

   110.   Arrest for breach of bond for appearance

   111.   Power of court to order prisoner to be brought before it

   112.   Provisions of this Part generally applicable to summonses and warrants

   113.   Power to issue search warrant

   113A.   Search warrant

   114.   Execution of search warrant

   115.   Persons in charge of closed place to allow entry

   116.   Detention of property seized

   117.   Provisions applicable to search warrants

   118.   Bail in certain cases

   119.   Bail bond

   120.   Discharge from custody

   121.   Deposit in place of, or in addition to, bond

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

   123.   Discharge and death of sureties

   124.   Person bound by bond absconding may be committed

   125.   Forfeiture of bond

   126.   Offences to be specified with necessary particulars

   127.   Joinder of counts in a charge and joinder of two or more accused in one charge

   128.   Rules for the framing of charges

   129.   Previous conviction or acquittal of same offence

   130.   Consequences supervening and not known at time of former trial

   131.   Pleas that accused has been previously acquitted or convicted of same offence

   132.   Where original court was not competent to try subsequent charge

   133.   Inquiry by court as to unsoundness of mind

   134.   Defence of insanity at preliminary inquiry

   135.   Defence of insanity on trial

   136.   Certificate of medical officer as to sanity to be evidence

   137.   Authority and effect of reception orders made under section 133 or 135

   138.   Procedure where accused does not understand proceedings

   139.   Mode of delivering judgment

   140.   Contents of judgments

   141.   Copy of judgment, etc., to be given to accused on application

   142.   Costs against accused or private prosecutor

   143.   Order to pay costs appealable

   144.   Costs and compensation to be specified in order, how recoverable

   145.   Power of court to award expenses or compensation out of fine

   146.   Payment of amount awarded under section 145, etc.

   147.   Property found on accused person

   148.   Restitution of stolen property

   149.   Disposal of property

   150.   When offence proved is included in offence charged

   151.   Alteration of charge, etc.

   152.   Person charged with any offence may be convicted of attempt

   153.   Alternative verdictsin various offences involving the homicide of children

   154.   Alternative verdict in charge of manslaughter from driving of motor vehicle

   155.   Alternative verdict in charges of rape and kindred offences

   156.   Person charged with burglary, etc., may be convicted of kindred offence

   157.   Alternative verdicts in charges of stealing and kindred offences

   158.   Construction of sections 150 to 157

   159.   Person charged with misdemeanour not to be acquitted if felony proved, unless court so directs

   160.   Right of accused to be defended [Repealed by 14 of 2010]

   161.   Promotion of reconciliation

PART IVA
PRE-TRIAL CUSTODY TIME LIMITS

   161A.   Pre-trial custody time limits

   161B.   Interpretation

   161C.   Reckoning of time

   161D.   Custody time limit for offences triable in subordinate courts

   161E.   Custody time limit in relation to committal proceedings

   161F.   Custody time limit for offences triable in the High Court

   161G.   Custody time limit for serious offences

   161H.   Extension of custody time limit

   161I.   Bail on expiry of custody time limit

   161J.   Application of general law on bail

PART V
MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS

   162.   Evidence to be taken in presence of accused

   163.   Manner of recording evidence before magistrate

   164.   Interpretation of evidence to accused or his legal practitioner

   165.   Cases heard by one magistrate continued by another magistrate

   166.   Sentence by one magistrate of person convicted by another magistrate

   167.   Record of evidence in High Court and subordinate courts

PART VI
EVIDENCE IN CRIMINAL PROCEEDINGS

   168.   Application of this Part

   169.   When a fact said to be proved, disproved and not proved

   170.   Presumptions

   171.   Relevancy of facts

   172.   Admissibility of evidence

   173.   Statement of person who cannot be called as witness

   174.   Relevancy of statements made in special circumstances

   175.   Proof of facts by written statement

   176.   Confessions

   177.   Evidence of persons who are seriously ill

   178.   Relevancy of certain evidence for proving in subsequent proceeding the truth of facts stated therein

   179.   Admissibility of photographs, plans

   180.   Admissibility of the reports of experts

   181.   How previous convictions may be proved

   182.   Judicial notice

   183.   Proof by formal admission

   184.   Hearsay evidence not admissible, etc.

   185.   Previous judgments relevant to bar a second trial

   186.   Relevancy of certain judgments conferring legal character, etc.

   187.   Burden of proof

   188.   Burden of proving that case of accused comes within exceptions and facts especially within his knowledge

   189.   Burden of proving death, partnership, etc.

   190.   Opinions of experts

   191.   Opinions as to handwriting, customs, tenets, etc.

   192.   Character of the accused

   193.   Evidence by accused for the defence

   193A.   Evidence of alibi

   194.   Evidence by husband and wife of an accused

   195.   Summons for witness

   196.   Warrant for witness who disobeys summons

   197.   Warrant for witness in first instance

   198.   Mode of dealing with witness arrested under warrant

   199.   Power of court to order prisoner to be brought up for examination

   200.   Penalty for non-attendance of witness

   201.   Power to summon material witness present

   202.   Refractory witnesses

   203.   Power to take evidence in absence of accused

   204.   Issue of commission for examination of witness within Malawi

   205.   Duties of magistrate to whom commission issued

   206.   Parties may examine witness

   207.   Return of commission

   208.   Examination of witnesses outside Malawi

   209.   Adjournment of proceedings

   210.   Who may testify

   211.   Dumb witnesses

   212.   Number of witnesses

   213.   Order of examination of witnesses

   214.   Examination, cross-examination and re-examination

   215.   Court to decide when questions shall be asked and when witness compelled to answer

   216.   Cross-examination of persons summoned to produce a document

   217.   Leading questions

   218.   When leading questions may be asked

   219.   Evidence as to matters in writing and cross-examination as to previous writings

   220.   Communication during marriage

   221.   Affairs of State [Repealed by 14 of 2010]

   222.   Official communications[Repealed by 14 of 2010]

   223.   Judges, magistrates, police and revenue officers

   224.   Professional communications

   225.   Privilege not waived by volunteering evidence

   226.   Confidential communications with legal practitioner

   227.   Production of documents another person having possession would refuse

   228.   Witness not excused from answering question on ground that answer will incriminate

   229.   Exclusion of evidence to contradict answers to questions testing veracity

   230.   Question by party to his own witness if hostile

   231.   Impeaching credit of witness

   232.   Evidence tending to corroborate evidence of relevant fact admissible

   233.   Former statements of witness may be proved to show consistency of later testimony as to same fact

   234.   What matters may be proved in connexion with proved statement relevant under section 173 or 178

   235.   Refreshing memory

   236.   Giving as evidence document called for and produced on notice

   237.   Using as evidence document production of which was refused on notice

   238.   Court’spower to put questions or order production

   239.   Power of assessors to put questions [Repealed by 23 of 1968]

   240.   No new trial for improper admission or rejection of evidence

   241.   Production of document

   242.   Accomplice

   243.   What evidence is to be given when a statement forms part of a conversation, document, etc.

   244.   Corroboration in cases of sedition, perjury, etc.

   245.   Rules relating to documentary evidence

PART VII
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS

   246.   Summary trial procedure

   247.   Absence of complainant or prosecutor

   248.   Absence of accused

   249.   Withdrawal of complaint

   250.   Adjournment

   251.   Plea of guilty

   252.   Plea of not guilty

   252A.   Rules relating to plea bargaining

   253.   Evidence for the prosecution

   254.   Procedure on close of case for prosecution

   255.   Case for the defence

   256.   Evidence for the defence

   257.   Evidence in reply

   258.   Addresses

   259.   The decision

   260.   Evidence for arriving at proper sentence

   261.   Prosecution time limits for trials in subordinate courts

   261A.   Rules relating to procedure in subordinate courts

PART VIII
PROVISIONS RELATING TO THE COMMITTAL OF ACCUSED PERSONS FOR TRIAL BEFORE THE HIGH COURT

   262.   Power to commit for trial

   263.   Court to hold preliminary inquiry

   264.   Charge to be read to accused, etc.

   265.   Depositions

   266.   Variance between evidence and charge

   267.   Remand

   268.   Provisions as to taking statements or evidence of accused

   269.   Evidence and address in defence

   270.   Discharge of accused

   271.   Commitment for trial

   272.   Conflict of evidence

   273.   Committal to next sessions

   274.   Summary adjudication

   275.   Complainant and witnesses to be bound over

   276.   Refusal to be bound over

   277.   Accused entitled to copy of depositions

   278.   Binding over of witnesses conditionally

   279.   Transmission of records to High Court and Director of Public Prosecutions

   280.   Power of Director of Public Prosecutions to direct further investigation and to order further depositions

   281.   Return of depositions with a view to summary trial

   282.   Filing of a charge

   283.   Notice of trial

   284.   Copy of charge and notice of trial to be served

   285.   Return of service

   286.   Postponement of trial before commencement

   287.   Directions as to service of notices

PART IX
SUMMARY COMMITTAL PROCEDURE FOR TRIAL OF PERSONS BEFORE THE HIGH COURT

   288.   Interpretation

   289.   Certifying of case as a summary procedure case

   290.   No preliminary inquiry in summary procedure case

   291.   Record to be forwarded

   292.   Filing of a charge

   293.   Statement, etc., to be supplied to accused

PART X
TRIALS BEFORE THE HIGH COURT

   294.   Trials before the High Court

   295.   Qualifications and liability to serve as a juror

   296.   Exemptions from liability for jury service

   297.   Preparation of lists of jurors

   298.   Summoning of jurors

   299.   Excusing from attendance

   300.   Penalty for non-attendance

   301.   Want of qualification ground for challenge but not for avoiding trial

   302.   When accused to be tried

   302A.   Prosecution time limits for trials in the High Court

   303.   Commencement of trial in the High Court: plea and directions hearing

   304.   Selection of jurors

   305.   Jurors to be sworn and foreman appointed

   306.   Duties of foreman

   307.   Court to inform the jury about the charge

   308.   Provision in case of death, illness, or non-attendance of juror

   309.   Keeping jury together

   310.   Postponement of trial and the effect of order postponing trial or order for separate trial

   311.   The prosecution to open its case and examine witnesses

   312.   Recorded statement or evidence of accused may be put in as evidence

   313.   Close of case for the prosecution

   314.   The defence

   315.   Additional witnesses for the defence

   316.   Evidence in reply

   317.   Summing up by the accused or his legal practitioner and reply by prosecution

   318.   View by the High Court

   319.   Summing up to jury

   320.   Duties of judge in trials by a jury

   321.   Duty of jury

   321A.   Jury to consider evidence

   321B.   Effect of plea of guilty prior to verdict by jury

   321C.   Verdict of majority of not less than eight to be verdict of jury

   321D.   Court may direct further consideration

   321E.   How verdict to be given, etc.

   321F.   Failure of jury to agree

   321G.   Judgment to be in accordance with verdict of jury

   321H.   Calling upon the accused before passing sentence

   321I.   No stay, etc., of judgment for irregularity of certain grounds

   321J.   Evidence in arriving at a proper sentence

   321K.   Rules relating to procedure in the High Court

PART XI
CONSIDERATION BY HIGH COURT AND SUBORDINATE COURTS OF OTHER OFFENCES ADMITTED BY ACCUSED

   322.   Consideration of other offences admitted by accused

PART XII
SENTENCES AND THEIR EXECUTION

   323.   Sentence of death

   324.   Accused to be informed of right to appeal

   325.   Authority for detention

   326.   Record and report to be sent to President

   327.   Procedure where a woman convicted of capital offence alleges she is pregnant

   328.   Sentence of death not to be passed on pregnant woman

   329.   Warrant in case of sentence of imprisonment

   330.   Recovery of fine, penalty, etc.

   331.   Suspension of execution of sentence of imprisonment in default of fine

   332.   Order for payment of money on non-recovery of which imprisonment may be imposed

   333.   Commitment for want of seizure and sale

   334.   Payment in full after commitment

   335.   Part payment after commitment

   336.   Who may issue warrant

   337.   Orders where punishment not appropriate, absolute or conditional discharge, probation, etc.

   338.   Security for keeping the peace

   339.   Suspended sentence

   340.   Imprisonment of first offenders

   341.   Consequences of breach of conditions

   342.   Person twice convicted may be subjected to police supervision

   343.   Requirements from persons subject to police supervision

   344.   Failure to comply with requirements under section 343

   345.   Errors and omissions in orders and warrants

PART XIII
APPEALS AND REVIEW

   346.   Appeal to High Court

   347.   Number of judges on appeal

   348.   No appeal on plea of guilty [Repealed by 14 of 2010]

   349.   Limitation of appeals

   350.   Petition of appeal

   351.   Summary dismissal of appeal

   352.   Notice of time and place of hearing

   353.   Powers of the High Court

   354.   Orders conformable to judgment or order

   355.   Stay of execution and admission to bail pending appeal

   356.   Additional evidence

   357.   Abatement of appeals

   358.   Appeals to the Supreme Court of Appeal [Repealed by 24 of 1968]

   359.   Admission to bail pending appeal

   360.   Power of High Court to call for records for review

   361.   Power of Resident Magistrates to call for records of lower courts and to report to the High Court

   362.   Powers of the High Court on review

   363.   Discretion of Court as to hearing parties

PART XIV
MISCELLANEOUS

   364.   Rules relating to duties of court officials, interpreters, etc.

   364A.   Rules relating to community service

   365.   Shorthand notes, and electronic records of proceedings

   366.   Copies of proceedings

   367.   Forms

   368.   Allowances to jurors, complainants and witnesses

PART XV
SAVINGS AND CONSEQUENTIAL AMENDMENTS

   369.   Savings

   370.   Savings pending proceedings [Repealed by 14 of 2010]

   371.   Application of Code to criminal proceedings in any traditional or local court

      First Schedule

      Second Schedule

      Third Schedule

INDEX TO SUBSIDIARY LEGISLATION

Under Section 79

      Appointments of Public Prosecutors

Under Section 93

      Criminal Procedure (Pleas of Guilty in Writing) Rules

Under Section 245

      Criminal Procedure and Evidence (Documentary Evidence) Rules

Under Section 343

      Criminal Procedure (Police Supervision) Rules

Under Section 367

      Criminal Procedure (Forms) Notice

Under Section 368

      Criminal Procedure and Evidence (Jurors and Witnesses Allowances) Rules

Under Section 371

      Notice Applying Certain Provisions of the Code to Criminal Proceedings In All Traditional or Local Courts

      Notice Applying Provisions of Section 322 of the Code to Criminal Proceedings in Certain Traditional or Local Courts only

Under Section 297

      Criminal Procedure (Selection of Jurors) Order

Under Section 294

      Criminal Procedure (Trials without Jury) Order

Under Section 364A

      Community Service (General) Rules

36 of 1967
23 of 1968
24 of 1968
5 of 1969
30 of 1969
31 of 1969
32 of 1969
23 of 1970
33 of 1970
5 of 1971
51 of 1971
24 of 1972
18 of 1973
19 of 1977
30 of 1994
19 of 1995
18 of 1996
20 of 1996
9 of 1999
14 of 2010

An Act to provide for the law relating to procedure and evidence in criminal proceedings and for incidental matters

[1ST FEBRUARY, 1968]

PART I
PRELIMINARY

1.   Short title

   (1) This Act may be cited as the Criminal Procedure and Evidence Code.

   (2) This Act is herein after 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 requiresa 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 occasioning 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.

8.   

   [Repealed by 31 of 1969].

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 exceeding K200,000 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 monthsor 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 or 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 imprison- ment 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 Malawi 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 on 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 to be 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 Malawi or else- where; 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 Malawi 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 Malawi and the Malawi 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 Malawi which, if committed in Malawi, would have been punishable as an offence and for which he is under any written law liable to be apprehended and detained in Malawi;

   (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 istaking 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 putsor 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 Malawi, the bond shall be secured by a surety or sureties resident in Malawi.

   (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 fficer 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 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 givesa 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 immedi- ately.

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 Malawi.

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 thinksfit 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 thinksfit 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 thinksfit 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, housebreaker 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 herein under 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 thinksfit.

   (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 Malawi

   Every court has authority to cause to be brought before it any person who is in Malawi and is charged with an offence committed within Malawi or partly within and partly beyond Malawi 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 Malawi:

   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 con-clusive, except that it shall be open to an accused to show that no court in Malawi 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;

      (iv)   proceedings before a magistrate under section 83 (2), (3) and (4) or under section 84;

      (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 groundson 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 Malawi.

   (2) Any officer, legal practitioner or other person appointed to be a public prosecutor under section 79 shall, in carrying out his dutiesas 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.

78.   

   [Repealed by 14 of 2010].

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 Malawi 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 Malawi; and

   (c)   by sending it in a registered letter addressed to the chief officer of the company or body in Malawi.

   (2) Service of a summons on a company incorporated outside Malawi which has established a place of business within Malawi 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—

   (a)   with a fine only; or

   (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 Malawi 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 sectoin 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—

   (a)   has absconded; or

   (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 Malawi, 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—

   (a)   by seizure; or

   (b)   by the appointment of a receiver; or

   (c)   by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or (d) by all or any two of such methods as the court thinks fit.

   (4) If the property ordered to be attached 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 warrants

   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 22.

   (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 section 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 thinksfit, 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 Malawi, 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 reason- able 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 his defence, 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 thinksfit.

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