Complaints XLVIII of 1860, sec. 29 (Police). V of 1861, sec. 42 (Police). XX of 1879, sec. 12 (Glanders and Farcy). II of 1880, sec. 19 (Burma District Cesses and Police). Two Months. Ben. Act IV of 1876, sec. 351 (Calcutta Municipality). One Month. XIX of 1850, sec. 18 (Binding Apprentices). Ten Days. Mad. Act II of 1866, sec. 16 (Cattle Disease)'. Chapter XVI, of complaints to Magistrates, corresponds to to Magis sections 144 to 147 of Act X of 1872, but adds (sec. 201) a pro trates. Com mence ment of proceed ings. vision that a complaint in writing made to a Magistrate not competent to entertain it shall be returned for presentation to the proper tribunal. The present Code makes it clear that the power (sec. 202) to postpone the issue of process cannot be exercised by a Magistrate of the third class. Chapter XVII treats of the commencement of proceedings before Magistrates shows when a summons or a warrant should issue, and enables the Magistrate in certain cases (sec. 205) to dispense with the personal attendance of the accused. 1 For similar limitations in England, see Archbold, 79, 80. In Scotland there seems to be a vicennial prescription for all crimes where no sentence of fugitation has been pronounced and no step has been taken to bring the offender to trial. In the case of wrongous imprisonment there is a triennial prescription. According to the New York Code of Criminal Procedure, §§ 141, 142, a prosecution for murder (or abetment of murder, 4 Wend. 229) may be commenced at any time; but an indictment for every other crime must be found within five years after its commission, except where a less term is prescribed by statute. In Chapter XVIII-of inquiry into cases triable by the Court Inquiry of Session or High Court-power is given (sec. 209) to the into cases triable by Magistrate to discharge the accused at any stage of the case if, for Sessions reasons to be recorded, the Magistrate considers the charge to be Court. groundless. This chapter also contains provisions as to the framing of the charge (sec. 210), the witnesses for the defence (secs. 211, 212, 216, 217), and the custody of the accused pending trial (sec. 220). The accused should have full notice of the offence charged against The him. Chapter XIX, therefore, deals with the form of the charge charge. (secs. 221-224): the effect of the absence of a charge or of errors in one (secs. 225, 232): alterations in charges (sec. 227): joinder of charges (sec. 233); and the trial at one trial for several offences (secs. 234, 235, 236, 239). It extends to the whole of British India the amendments in Act X of 1872, sections 439 to 459, made in the Presidency Towns, Allahabad and Lahore by Act X of 1875; and with reference to Mr. Justice West's observations in 11 Bomb. H. C. 241, on the corresponding section (457) of the Code of 1872, section 238 of the present Code has been confined to offences consisting of several particulars, a combination of some only of which constitutes a complete minor offence. From the section (235), corresponding with section 454 of the Code of 1872, have been omitted all provisions as to the amount of punishment. They obviously belong to substantive law, not to procedure, and find their proper place in the Penal Code as amended by Act VIII of 1882. The illustrations have also been amended. Provision has been made in section 238 for the case where a person charged with an offence proves circumstances which reduce it to a minor offence. He may then be convicted of the minor offence, though he is not charged with it. summons cases. Chapter XX prescribes a simple procedure for the trial by Trial of Magistrates of summons-cases. No formal charge need be framed. The Magistrate states to the accused the particulars of his alleged offence, and asks him if he has any cause to show why he should not be convicted. If he admits his guilt he is convicted. If he does not, evidence is taken-a mere memorandum of its substance being made (sec. 355)—and he is acquitted or sentenced according to its effect. This chapter should expressly provide, in sec. 244, for cross-examination of witnesses. When the complaint is frivolous Frivolous or vexatious, the Magistrate may order the complainant to pay the complaints. accused compensation not exceeding rs. 50. To the section (250) giving this power a clause has been added, providing that, when awarding compensation in any subsequent civil suit relating to the Trial of warrant cases. Summary trials. Trials before High Courts and same matter, the Court shall take into account any sum paid or recovered as compensation under this section. Chapter XXI deals with trials of warrant-cases by Magistrates. The chief distinction between this procedure and that provided for the trial of summons-cases is that under Chapter XXI the Magistrate first hears the complainant (if any) and takes the evidence for the prosecution, and then, if there is ground for presuming the guilt of the accused, frames a written charge to which he is required to plead. Moreover, the evidence of each witness is taken down in writing (sec. 356): it is not enough (as in trying a summons-case) to make a memorandum of its substance. Here, as in Chapter XVIII, has been inserted a clause (sec. 253) authorising the Magistrate to discharge the accused at any stage of the case if, for reasons to be recorded, the Magistrate considers the charge to be groundless. Under the Code of 1872 (sec. 215), no matter how groundless the charge might be, the Magistrate was compelled, before discharging the accused, to take the evidence of the complainant and of all the witnesses whom the prosecution might bring forward. The provision in the same Code, sec. 218, that the accused shall, while making his defence, be allowed to recall and cross-examine the witnesses for the prosecution, has been expressly confined (sec. 256) to cases where these witnesses are present in the Court or its precincts. The power to recall witnesses for the prosecution after they had left the Court was often abused for the purpose of harassment and delay. Chapter XXII deals with summary trials of the minor offences specified in sec. 260. Here the Local Government is authorised to confer on Benches invested with second or third class powers jurisdiction to try abetments of, and attempts to commit, the offences which they may now try summarily. The omission in the Code of 1872 to provide for these abetments and attempts was obviously per incuriam. The offences of retaining stolen property not exceeding rs. 50 in value, and assisting in the concealment or disposal of stolen property not exceeding rs. 50 in value, have been added to the list of those triable in a summary way; and the offence of receiving stolen property will not be so triable where its value exceeds that amount. The limit of imprisonment under this chapter is three months (sec. 262). Where no appeal lies, the Magistrate or Bench neither records the evidence nor frames a formal charge; but merely enters certain particulars in such form as the Local Government directs (sec. 263). No reasons are given except in case of conviction. Chapter XXIII provides a common procedure for the High Courts and the Courts of Session in trials before those tribunals. But all trials before a High Court must be by a jury of nine; all Courts of trials before a Court of Session must be either by a jury of an Session. uneven number, not more than nine nor less than three, or with the aid of assessors; and prosecutions before the Court of Session must be conducted by a public prosecutor (sec. 270). Sections 271, 272 deal with the plea of guilty (which there is no power to withdraw), refusal or omission to plead, and 'claim to be tried.' The pleas of previous conviction and previous acquittal are dealt with in another part of the Code (sec. 403). There is no plea of insanity, this matter being provided for by Chapter XXXIV. There are also special rules (secs. 274, 275) as to juries, challenges (secs. 277-279), foremen (sec. 280), swearing jurors (sec. 281), discharging juries (sec. 282), assessors (secs. 284, 285), the procedure to the close of the case, the charge (sec. 297), the respective duties of the judge and the jury (secs. 298, 299), and, lastly, the verdict (secs. 301-307). As to this the rules are peculiar : In the High Court. When the nine jurors are unanimous, or when as many as six are of one opinion and the judge agrees with them, the judge gives judgment accordingly. When the jury are satisfied that they will not be unanimous, but six are of one opinion, the foreman so informs the judge, and if the judge disagrees with the majority he at once discharges the jury. If there are not so many as six who agree, the judge, after such interval as he thinks reasonable, discharges the jury. In the Court of Session. When the judge does not think it necessary to express disagreement with the verdict of the jurors or of a majority (two, three, four, or five) of the jurors, he gives judgment accordingly. If the accused is acquitted, the judge records judgment of acquittal. If he is convicted, the judge passes sentence. But if the judge disagrees so completely that he considers it necessary for the ends of justice to submit the case to the High Court, he submits it accordingly, recording the grounds of his opinion. Where the Sessions Judge disagrees with a verdict of acquittal and submits the case to the High Court, he is required (sec. 307) to state the offence which he considers to have been committed, and the High Court is empowered to acquit or convict the accused of any offence of which the jury could have convicted him upon the charge framed and placed before it. This, it is believed, was the intention of the corresponding clause of section 263 of Act X of 1872. The change was suggested by the decision of Markby J. in 3 Cal. 189. committed To prevent jurors and assessors from being biassed against the Offence accused by the knowledge that he is an old offender, section 310 after provides that the part of the charge stating the previous conviction previous shall not be read out . . . unless and until he has either pleaded conviction. General accom plices. guilty to, or been convicted of, the subsequent offence.' There is a similar rule in England (6 & 7 Wm. IV. c. III). Chapter XXIV contains general provisions as to inquiries and provisions. trials. The subject of tendering pardons to accomplices is first dealt Pardons to with. Such tender can only be made in cases triable exclusively by the Court of Session or High Court. In cases where a pardon is tendered to and accepted by a person, and such person gives evidence before a Magistrate in a preliminary inquiry, he should not be forced to adhere to that evidence in a subsequent trial, through fear of being prosecuted on an alternative charge of giving false evidence either before the Magistrate or the Judge. It might happen that he was wrongly induced or coerced into giving evidence before the Magistrate. Section 339 accordingly provides that no prosecution for giving false evidence in a statement made under promise of pardon shall be entertained without the sanction of the High Court. Sec. 342 gives the power to examine the accused for the purpose, tion of the only, of enabling him 'to explain any circumstances appearing in the evidence against him.' The section assumed its present form partly owing to a judgment of the High Court of Bengal (6 Cal. 102), partly owing to the following words of Edward Livingston1: 'An unrestrained right of interrogating is also very apt to produce insidious and catching questions. Instead of a cool and impartial attempt to extract the truth, the examination becomes a contest, in which the pride and ingenuity of the magistrate are arrayed against the caution or evasions of the accused; and every construction will be given to his answer that may fix upon him the imputation of guilt.' It may be added that badgering by the judge is apt to arouse undue sympathy for the prisoner. Examina accused. Compounding offences. Much doubt existed as to the offences which may lawfully be compounded. The Exception to section 214 of the Penal Code (in which the law on the subject was contained) was in 1882 excessively obscure, and this obscurity was increased rather than diminished by the illustrations annexed to that section. The Criminal Procedure Code of 1882 repeals these illustrations; and section 345 declares in unmistakeable language that certain specified offences, and no others, may be compounded. These are Uttering words etc. with deliberate intent to wound religious 1 Works, i. 355. 2 It may therefore be doubted whether sec. 55 of the Madras Forest Act, Mad. Act V of 1882, and sec. 67 of the Madras Excise Act, Mad. Act I of 1886, are not ultra vires of the local legislature by which they were enacted. |