Chapter XV
OF THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS
A.-Place of Inquiry or Trial
Ordinary place of inquiry and trial
177. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
Power to order cases to be tried in different sessions divisions
178. Notwithstanding anything contained in section 177, the Government may direct that any cases or class of cases [sent] for trial in any district may be tried in any sessions division:
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Accused triable in district where act is done or where consequence ensues
179. When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
Illustrations
(a) A is wounded within the local limits of the jurisdictions of Court X, and dies within the local limits of the jurisdiction of Court Z. The offence of the culpable homicide of A may be required into or tried by X or Z.
(b) A is wounded within the local limits of the jurisdiction of Court X, and is, during ten days within the local limits of the jurisdiction of Court Y, and during ten days more within the local limits of the jurisdiction of Court Z, unable in the local limits of the jurisdiction of either Court Y, or Court Z, to follow his ordinary pursuits. The offence of causing grievous hurt to a may be inquired into or tried by X, Y or Z.
(c) A is put in fear of injury within the local limits of the jurisdiction of Court X, and is thereby induced, within the local limits of the jurisdiction of Court Y, to deliver property to the person who put him in fear. The offence of extortion committed on a may be inquired into or tried either by X or Y.
(d) A is wounded in [Dhaka], and dies of his wounds in [Chittagong]. The offence of causing A's death may be inquired into and tried in [Chittagong].
Place of trial where act is offence by reason of relation to other offence
180. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.
Illustrations
(a) A charge of abetment may be inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed, or by the court within the local limits of whose jurisdiction the offence abetted was committed.
(b) A charge of receiving or retaining stolen goods may be inquired into or tried either by the Court within the local limits of whose jurisdiction the goods were stolen, or by any Court within the local limits of whose jurisdiction any of them were at any time dishonestly received or retained.
(c) A charge of wrongfully concealing a person known to have been kidnapped may be inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful concealing, or by the Court within the local limits of whose jurisdiction the kidnapping, took place.
Being a thug or belonging to a gang of dacoits, escape from custody, etc.
181.(1) The offence of being a thug, of being a thug and committing murder, of dacoity, of dacoity with murder, of having belonged to a gang of dacoits, or of having escaped from custody, may be inquired into or tried by a Court within the local limits of whose jurisdiction the person charged is.
Criminal misappropriation and criminal breach of trust
(2) The offence of Criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused person, or the offence was committed.
Theft
(3) The offence of theft, or any offence which includes theft or the possession of stolen property, may be inquired into or tried by a Court within the local limits of whose jurisdiction such offence was committed or the property stolen was possessed by the thief or by any person who received or retained the same knowing or having reason to believe it to be stolen.
Kidnapping and abduction
(4) The offence of kidnapping or abduction may be inquired into or tried by a Court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted or was conveyed or concealed or detained.
Place of inquiry or trial where scene of offence is uncertain or not in one district only or where offence is continuing or consists of several acts
182. When it is uncertain in which of several local areas an offence was committed, or
where an offence is committed partly in one local area and partly in another, or
where an offence is a continuing one, and continues to be committed in more local areas than one, or
where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Offence committed on a journey
183. An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender, or the person against whom, or the thing in respect of which, the offence was committed, passed in the course of that journey or voyage.
Repealed
184. [Repealed by section 3 and 2nd Schedule of the Federal Laws (Revision and Declaration) Act, 1951 (Act No. XXVI of 1951).]
High Court Division to decide, in case of doubt, district where inquiry or trial shall take place
185.(1) Whenever a question arises as to which of two or more Courts subordinate to [* * *] High Court Division ought to inquire into or try any offence, it shall be decided by [the] High Court Division.
(2). [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
Magistrate's procedure on arrest
(2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court Division.
Power to issue summons or warrant for offence committed beyond local jurisdiction
186.(1) When [a Metropolitan Magistrate] [or a Magistrate of the first class], sees reason to believe that any person within the local limits of his jurisdiction has committed without such limits (whether within or without Bangladesh, an offence which cannot, under the provisions of sections 177 to [183] (both inclusive), or any other law for the time being in force, be inquired into or tried within such local limits, but is under some law for the time being in force triable in Bangladesh, such Magistrate may inquire into the offence as if it had been committed within such local limits and compel such person in manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is bailable, take a bond with or without sureties for his appearance before such Magistrate.
Procedure where warrant issued by subordinate Magistrate
187.(1) If the person has been arrested under a warrant issued under section 186 by a Magistrate [such Magistrate shall send the person arrested to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate] to whom he is subordinate, unless the Magistrate having jurisdiction to inquire into or try such offence issues his warrant for the arrest of such person in which case the person arrested shall be delivered to the police-officer executing such warrant or shall be sent to the Magistrate by whom such warrant was issued.
(2) If the offence which the person arrested is alleged or suspected to have committed is one which may be inquired into or tried by any Criminal Court in the same district other than that of the Magistrate acting under section 186 such Magistrate shall send such person to such Court.
Liability for offences committed outside Bangladesh
188. When a citizen of Bangladesh commits an offence at any place without and beyond the limits of Bangladesh, or
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When any person commits an offence on any ship or aircraft registered in Bangladesh wherever it may be,
he may be dealt with in respect of such offence as if it had been committed at any place within Bangladesh at which he may be found:
Political Agents to certify fitness of inquiry into charge
Provided that notwithstanding anything in any of the preceding sections of this Chapter no charge as to any such offence shall be inquired into in Bangladesh [except with the sanction of the Government]:
Provided, also, that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in Bangladesh shall be a bar to further proceedings against him under [the
Extradition Act, 1974], in respect of the same offence in any territory beyond the limits of Bangladesh.
Power to direct copies of depositions and exhibits to be received in evidence
189. Whenever any such offence as is referred to in section 188 is being inquired into or tried, the Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before [* * *] a judicial officer in or for the territory in which such offence is alleged to have been committed shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.
B.-Conditions requisite for Initiation of Proceedings
Cognizance of offences by Magistrates
190.(1) Except as hereinafter provided, any [Chief Metropolitan Magistrate,] [Metropolitan Magistrate], [Chief Judicial Magistrate, Magistrate of the first class, and any other Magistrate specially empowered in this behalf under sub-section (2) or (3)], may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police-officer;
(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.
[(2) the Government may, and subject to any general or special order issued in this behalf by the High Court Division, the Chief Judicial Magistrate may empower any Magistrate of the second or third class to take cognizance under sub-section (1) clause (a) or clause (b) of offences which he may try or send for trial]
(3) The Government may empower any Magistrate of the [***] second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or [send] for trial.
[(4) Notwithstanding anything contained to the contrary in this section or elsewhere in this Code, the Government may, by an order specifying the reasons and period stated therein, empower any Executive Magistrate to take cognizance under clause (a), (b) or (c) or sub-section (1), of offences and the Executive Magistrate shall send it for trial to the court of competent jurisdiction.]
Transfer [***] on application of accused
191. When a Magistrate takes cognizance of an offence under sub-section (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one, objects to being tried by such Magistrate, the case shall, instead of being tried by such Magistrate, be [sent] to the Court of Session or transferred to another Magistrate.
Transfer of cases by Magistrates
192.(1) [ [The Chief Metropolitan Magistrate], or [any Chief Judicial Magistrate] may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate sub-ordinate to him.
(2) Any [Chief Judicial Magistrate] may empower any Magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try accused or [send] him for trial; and such Magistrate may dispose of the case accordingly.
Cognizance offences by Courts of Session
193.(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been [sent] to it by a Magistrate duly empowered in that behalf.
(2) Additional Sessions Judges and [Joint] Sessions Judges shall try such cases only as the Government by general or special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial.
Prosecution for contempt of lawful authority of public servants
195.(1) No Court shall take cognizance:-
(a) of any offence punishable under sections 172 to 188 of the Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
Prosecution for certain offences against public justice
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or
Prosecution for certain offences relating to documents given in evidence
(c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [
Registration Act, 1908].
(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such court shall be deemed to be subordinate; and
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under sub-section (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
Prosecution for offences against the State
196. No Court shall take cognizance of any offence punishable under Chapter VI or IXA of the Penal Code (except section 127), or punishable under section 108A, or section 153A, or section 294A, or section 295A or section 505 of the same Code, unless upon complaint made by order of, or under authority from, the [Government, or some officer empowered in this behalf by the Government].
Preliminary inquiry in certain cases
[196B. In the case of any offence in respect of which the provisions of section 196 or section 196A apply, [ [***] a District Magistrate may, notwithstanding anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police-officer not being below the rank of Inspector, in which case such police-officer shall have the powers referred to in section 155, sub-section (3).]
Prosecution for certain classes of criminal conspiracy
[196A. No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120B of the Penal Code,
(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of section 196 apply, unless upon complaint made by order or under authority from the [Government, or some officer empowered in this behalf by the Government], or.
(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, unless the [Government, [***] or a] District Magistrate empowered in this behalf by the Government, has, by order in writing consented to the initiation of the proceedings:
Provided that where the criminal conspiracy is one to which the provisions of sub-section (4) of section 195 apply no such consent shall be necessary.]
Prosecution of Judges and public servants
197.(1) When any person who is a Judge within the meaning of section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the [previous sanction of the Government]-
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Power of Government as to prosecution
(2) [The Government] may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Prosecution for breach of contract, defamation and offences against marriage
198. No Court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Penal Code or under sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf:
Provided further that where the husband aggrieved by an offence under section 494 of the said code is serving in any of the armed forces of Bangladesh under conditions which are certified by the Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other persons authorized by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court, make a complaint on his behalf.
Prosecution for adultery or enticing a married woman
199. No Court shall take cognizance of an offence under section 497 or section 498 of the Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed:
Provided that, where such husband is under the age of eighteen years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his behalf:
Provided further that where such husband is serving in any of the armed forces of Bangladesh under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorized by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court, make a complaint on his behalf.
Objection by lawful guardian to compliant by person other than person aggrieved
[199A. When in any case falling under section 198 or section 199, the person on whose behalf the complaint is sought to be made is under the age of eighteen years or is a lunatic, and the person applying for leave has not been appointed or declared by competent authority to be the guardian of the person of the said minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, notice shall be given to such guardian, and the Court shall, before granting the application, give him a reasonable opportunity of objecting to the granting thereof.]
Form of authorization under second proviso to section 198 or 199
[199B.(1) The authorization of a husband given to another person to make a complaint on his behalf under the second proviso to section 198 or the second proviso to section 199 shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by the Officer referred to in the said provisos, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(2) Any document purporting to be such an authorization and complying with the provisions of sub-section (1), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine, and shall be received in evidence.]
Chapter XVI
OF COMPLAINTS TO MAGISTRATES
Examination of complainant
200. A Magistrate taking cognizance of an offence on complaint shall at once examine [upon oath the complainant and such of the witnesses present, if any, as he may consider necessary,] and the substance of the examination shall be reduced to writing and shall be signed [by the complainant or witness so examined], and also by the Magistrate:
Provided as follows:-
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require [such examination] before transferring the case under section 192;
(aa) when the complaint is made in writing nothing herein contained shall be deemed to require [such examination] in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
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(c) when the case has been transferred under section 192 and the Magistrate so transferring it has already [examined the complainant and witness if any,] the Magistrate to whom it is so transferred shall not be bound to [re-examine them].
Procedure by Magistrate not competent to take cognizance of the case
201.(1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall return the complaint for presentation to the proper Court with an endorsement to that effect.
(2) If the complaint has not been made in writing, such Magistrate shall direct the complainant to the proper Court.
Postponement for issue of process
202.(1) Any Magistrate, on receipt of a complaint of an offence of he is authorized to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth of falsehood of the complaint:
Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the [provisions of section 200 have been complied with] [:
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[Provided further that where it appears to the Magistrate that the offence complained of is triable exclusively by a Court of Session, the Magistrate may postpone the issue of process for compelling the attendance of the person complained against and may make or cause to be made an inquiry or investigation as mentioned in this sub-section for the purpose of ascertaining the truth or falsehood of the complaint.]
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police-officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police-station, except that he shall not have power to arrest without warrant.
(2A) Any Magistrate inquiring into a case under this section may, if he thinks, fit, take evidence of witnesses on oath [:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.]
[(2B) Where the police submits the final report, the Magistrate shall be competent to accept such report and discharge the accused.]
Dismissal of complaint
203. The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202; there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.
Chapter XVII
OF THE COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES
Issue of process
204.(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.
[(1A) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(1B) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.]
(2) Nothing in this section shall be deemed to affect the provisions of section 90.
(3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
Magistrate may dispense with personal attendance of accused
205.(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided.
[Omitted] & 205B. [Omitted]
[205A and 205B. [Omitted by section 13 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).]
Transfer of case of Court of Session when offence is trial exclusively by it
205C. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) send the case to the Court of Session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the transfer of the case to the Court of Session.
Transfer of case to [Chief Metropolitan Magistrate, Chief Judicial Magistrate], etc.
[205CC.(1) When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the [Chief Metropolitan Magistrate,] [ or Chief Judicial Magistrate], he shall-
(a) send the case to the [Chief Metropolitan Magistrate or, as the case may be, [Chief Judicial Magistrate];
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to the [Chief Metropolitan Magistrate or, as the case may be, [Chief Judicial Magistrate] the record of the case and the documents and articles, if any, which are to be produced in evidence.
(2) The [Chief Judicial Magistrate or the Chief Metropolitan Magistrate] may direct that any case received by him under sub-section (1) or any class of such cases shall be heard by any [Additional Chief Metropolitan Magistrate or, Additional Chief Judicial Magistrate] subordinate to him.]
Procedure to be followed when there is a complaint case and police investigation in respect of the same offence
205D.(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police-officer conducting the investigation.
(2) If a report is made by the investigating police-officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code].
Chapter XVIII
OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR HIGH COURT DIVISION
(206-220) Omitted
Chapter XIX
OF THE CHARGE
Form of Charges
Charge to state offence
221.(1) Every charge under this Code shall state the offence with which the accused is charged.
Specific name of offence sufficient description
(2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
How stated where offence has no specific name
(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.
What implied in charge
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.
Language of charge
(6) The charge shall be written either in English or in the language of the Court.
Previous conviction when to be set out
(7) If the accused having been previously convicted of any offence is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge. If such statement has been omitted, the Court may add it at any time before sentence is passed.
Illustrations
(a) A is charged with the murder of B. This equivalent to a statement that A's act fell within the definition of murder given in sections 299 and 300 of the Penal Code; that it did not fall within any of the general exceptions of the same Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall within Exception 1, one or other of the three provisions to that exception apply to it.
(b) A is charged, under section 326 of the Penal Code with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by section 335 of the Penal Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definitions of those crimes contained in the Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the charge.
(d) A is charged, under section 184 of the Penal Code with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
Particulars as to time, place and person
222.(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234:
When manner of committing offence must be stated
223. When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.
Illustrations
(a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected.
(b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save B from punishment. The charge must set out the disobedience charged and the law infringed.
Words in charge taken in sense of law under which offence is punishable
224. In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.
Effect of errors
225. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Illustrations
(a) A is charged under section 242 of the Penal Code, with "having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haider Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haider Baksh. The Court may infer from this that A was misled, and that the error was material.
Court may alter charge
227.(1) Any Court may alter or add to any charge at any time before judgment is pronounced [* * *].
(2) Every such alteration or addition shall be read and explained to the accused.
When trial may proceed immediately after alteration
228. If the charge framed or alteration or addition made under [* * *] section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such charge or alteration or addition has been framed or made proceed with the trial as if the new or altered charged had been the original charge.
When new trial may be directed, or trial suspended
229. If the new or altered or added charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
Stay of proceedings if prosecution of offence in altered charge require previous sanction
230. If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded.
Recall of witnesses when charge altered
231. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to re-call or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined and also to call any further witness whom the Court may think to be material.
Effect of material error
232.(1) If any Appellate Court, or the High Court Division in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Illustration
A is convicted of an offence, under section 196 of the Penal Code, upon a charge which omits to state that he knew the evidence, which he corruptly used or attempted to use as true or genuine, was false or fabricated. If the Court thinks it probable that A had such knowledge, and that he was misled in his defence by the omission from the charge of the statement that he had it, it shall direct a new trial upon an amended charge; but, if it appears probable from the proceedings that A had no such knowledge, it shall quash the conviction.
Joinder of Charges
Separate charges for distinct offences
233. For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
Three offences of same kind within year may be charged together
234.(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Penal Code or of any special [* * *] law:
Provided that, for the purpose of this section, an offence punishable under section 379 of the Penal Code shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
Trial for more than one offence
235.(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
Offence falling within two definitions
(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
Acts constituting one offence, but constituting when combined a different offence
(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts.
(4) Nothing contained in this section shall affect the Penal Code, section 71.
Illustrations
to sub-section (1)-
(a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with, and convicted of, offences under sections 225 and 333 of the Penal Code.
(b) A commits house-breaking by day with intent to commit adultery, and commits in the house so entered adultery with B's wife. A may be separately charged with, and convicted of, offences under sections 454 and 497 of the Penal Code.
(c) A entices B. the wife of C, away from C, with intent to commit adultery with, and then commits adultery with her. A may be separately charged with, and convicted of, offences under sections 498 and 497 of the Penal Code.
(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under section 466 of the Penal Code. A may be separately charged with, and convicted of, the possession of each seal under section 473 of the Penal Code.
(e) With intent of cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding; and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charges. A may be separately charged with, and convicted of, two offences under section 211 of the Penal Code.
(f) A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing that there is no just or lawful ground for such charge. On the trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with, and convicted of, offences under sections 211 and 194 of the Penal Code.
(g) A, with six others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavoring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under sections 147, 325 and 152 of the Penal Code.
(h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of the three offences under section 506 of the Penal Code.
The separate changes referred to in Illustrations (a) to (h) respectively may be tried at the same time.
to sub-section (2)-
(i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under sections 352 and 323 of the Penal Code.
(j) Several stolen sacks of corn are made over to A and B, who know they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grain pit. A and B may be separately charged with, and convicted of, offences under sections 411 and 414 of the Penal Code.
(k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with, and convicted of, offences under sections 317 and 304 of the Penal Code.
(l) A dishonesty uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under section 167 of the Penal Code. A may be separately charged with, and convicted of, offences under sections 471 (read with 466) and 196 of the same Code.
to sub-section (3)-
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be separately charged with, and convicted of, offences under sections 323, 392 and 394 of the Penal Code.
Where it is doubtful what offence has been committed
236. If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
Illustrations
(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.
(b) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.
When a person is charged with one offence, he can be convicted of another
237. If, in the case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
Illustration
A is charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be) though he was not charged with such offence.
When offence proved included in offence charged
238.(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(2A) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(3) Nothing in this section shall be deemed to authorize a conviction of any offence referred to in section 198 or section 199 when no complaint has been made as required by that section.
Illustrations
(a) A is charged, under section 407 of the Penal Code, with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 in respect of the property but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under section 406.
(b) A is charged under section 325 of the Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
What persons may be charged jointly
239. The following persons may be charged and 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 than one offence of the same kind, within the meaning of section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last named offence;
(f) persons accused of any offence under sections 411 and 414 of the Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of the Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence;
and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.
Withdrawal of remaining charges on conviction on one of several charges
240. When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges. Such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into or trial of the charge or charges so withdrawn.
Chapter XX
OF THE TRIAL OF CASES BY MAGISTRATES
Procedure in cases
241. The following procedure shall be observed by Magistrates in the trial of [cases].
When accused shall be discharged
[241A. When the accused appears or is brought before the Magistrate, and if the Magistrate, upon consideration of the record of the case and the documents submitted therewith and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused and record his reasons for so doing.]
Charge to be framed
[242. [If, after such consideration and hearing as aforesaid, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, the Magistrate shall frame a formal charge] relating to the offence of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.]
Conviction on admission of truth of accusation
243. If the accused admits that he has committed the offence [with which he is charged], his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly.
Procedure when no such admission is made
244.(1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence:
Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directed him to attend or to produce any document or other thing.
(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court.
Acquittal
245.(1) If the Magistrate upon taking the evidence referred to in section 244 and such further evidence (if any) as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.
Sentence
(2) Where the Magistrate does not proceed in accordance with the provisions of section 349 [***], he shall, if he finds the accused guilty, pass sentence upon him according to law.
Omitted
246. [Omitted by section 18 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).]
Non-appearance of complainant
247. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein before contained, acquit the accused, unless for some reason he thinks proper to adjoin the hearing of the case to some other day:
Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case.
Withdrawal of complaint
248. If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.
Power to stop proceedings when no complainant
249. In any case instituted otherwise than upon complaint, [a Metropolitan Magistrate], a Magistrate of the first class, or with the previous sanction of the [Chief Judicial Magistrate, any other Judicial Magistrate], may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused.
Frivolous Accusations in Cases tried by Magistrates.
False, frivolous or vexatious accusations
250.(1) If in any case instituted upon complaint or upon information given to a police-officer or to a Magistrate, one or more persons is or are accused before a Magistrate or any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is or opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or information may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding [one thousand Taka] or, if the Magistrate is a Magistrate of the third Class, not exceeding [five hundred Taka], as he may determine be paid by such complainant or informant to the accused or to each or any of them.
(2A) The Magistrate may, by the order directing payment of the compensation under sub-section (2), further order that, in default of payment, the person ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.
(2B) When any person is imprisoned under sub-section (2A), the provisions of sections 68 and 69 of the Penal Code shall, so far as may be, apply.
(2C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(3) A complainant or informant who has been ordered under sub-section (2) by a Magistrate of the second or third class to pay compensation or has been so ordered by any other Magistrate to pay compensation exceeding [one hundred taka] may appeal from the order, in so far as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(4) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if any appeal is presented, before the appeal has been decided and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order.
[(5) Notwithstanding anything contained in this section, the Magistrate may, in addition to the order directing payment of the compensation under sub-section (2), further order that the person ordered to pay such compensation shall also suffer imprisonment for a period not exceeding six months or pay a fine not exceeding three thousand Taka.]
Chapter XXI
OF THE TRIAL OF WARRANT-CASES BY MAGISTRATES
(251-259) Omitted
[Omitted by section 21 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).]
Chapter XXII
OF SUMMARY TRIALS
Power to try summarily
260.(1) Notwithstanding anything contained in this Code,-
[(a) the Metropolitan Magistrate [***],
(b) [any [***] Magistrate] of the first class [***] , and
(c) any Bench of Magistrates invested with the powers of a Magistrate of the first class [***],
[shall] try in a summary way all or any of the following offences:-
(a) offences not punishable with death, transportation or imprisonment for a term exceeding [two years];
(b) offences relating to weights and measures under sections 264, 265 and 266 of the Penal Code;
(c) Hurt, under section 323 of the same Code;
(d) theft, under section 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed [ten thousand taka];
(e) dishonest misappropriation of property under section 403 of the same Code, where the value of the property misappropriated does not exceed [ten thousand taka];
(f) receiving or retaining stolen property under section 411 of the same Code, where the value of such property does not exceed [ten thousand taka];
(g) assisting in the concealment or disposal of stolen property, under section 414 of the same Code, where the value of such property does not exceed [ten thousand taka];
(h) mischief, under [sections 426 and 427] of the same Code;
(i) [criminal trespass, under section 447, and] house trespass, under section 448, and offences under sections 451, 453, 454, 456 and 457 or the same Code;
(j) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506, [and offences under sections 509 and 510] of the same Code;
[(jj) offence of bribery and personation at an election under sections 171E and 171F of the same Code;]
(k) abetment of any of the foregoing offences;
(l) an attempt to commit any of the foregoing offences, when such attempt is an offence;
(m) offences under section 20 of the Cattle-trespass Act,1871: Provided that no case in which a Magistrate exercises the special powers conferred by section [33A] shall be tried in a summary way.
(2) [Omitted by section 22 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1982 (Ordinance No. XXIV of 1982).]
Power to invest Bench of Magistrates invested with less power
261. The Government may confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class power to try summarily all or any of the following offences:-
(a) offences against the Penal Code, sections 277, 278, 279, 285, 286, 289, 290, 292, 293, 294, 323, 334, 336, 341, 352, 426, 447 and 504;
(b) offences against Municipal Acts, and the conservancy clauses of Police Acts which are punishable only with fine or with imprisonment for a term not exceeding one month with or without fine;
(c) abatement of any of the foregoing offences;
(d) an attempt to commit any of the foregoing offences, when such attempt is an offence.
[Procedure for summary trials]
262.(1) In trials under this Chapter, the procedure prescribed [in Chapter XX] shall be followed [* * *] except as hereinafter mentioned.
Limit of imprisonment
(2) No sentence of imprisonment for a term exceeding [two years] shall be passed in the case of any conviction under this Chapter.
Record in cases where is no appeal
263. In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but he or they shall enter in such form as the Government may direct the following particulars:-
(a) the serial number;
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant ( if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (d), clause (e), clause (f) or clause (g) of sub-section (1) of section 260 the value of the property in respect of which the offence has been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding, and, in the case of a conviction, a brief statement of the reasons therefor;
(i) the sentence or other final order; and
(j) the date on which the proceedings terminated.
Record in appealable cases
264.(1) In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall, before passing sentence, record judgment embodying the substance of the evidence and also the particulars mentioned in section 263.
(2) Such judgment [and memorandum of the substance of the evidence as required by section 355] shall be the only record in cases coming within this section.
Language of record and judgment
265.(1) Records made under section 263 and judgments recorded under section 264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately sub-ordinate so directs, in such officer's mother-tongue.
Bench may be authorised to employ clerk
(2) The Government may authorize any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment by means of an officer appointed in this behalf by the Court to which such Bench is immediately subordinate, and the record or judgment so prepared shall be signed by each member of such Bench present taking part in the proceedings.
(3) If no such authorization be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record.
(4) If the Bench differ in opinion, any dissentient member may write a separate judgment.
Chapter XXIII
OF TRIALS BEFORE COURTS OF SESSION
Trial to be conducted by Public Prosecutor
265A. In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.
Opening case for prosecution
265B. When the accused appears or is brought before the Court in pursuance of section 205C, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.
Discharge
265C. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.
Framing charge
265D.(1) If, after such consideration and hearing as aforesaid, the Court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame in writing a charge against the accused.
(2) Where the Court frames a charge under sub-section (1), the charge shall be read and explained to the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
Conviction of plea of guilty
265E. If the accused pleads guilty, the Court shall record the plea and may, in its discretion, convict him thereon.
Date for prosecution evidence
265F. If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 265E, the Court shall fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the production of any document or other thing.
Evidence of prosecution
265G.(1) On the date so fixed, the Court shall proceed to take all such evidence as may be produced in support of the prosecution.
(2) The Court may, in its discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.
Acquittal
265H. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Court considers that there is no evidence that the accused committed the offence, the Court shall record an order of acquittal.
Entering upon defence
265-I.(1) Where the accused is not acquitted under section 265H, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Court shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Court shall issue such process unless he considers for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Arguments
265J. When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply:
Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Court, make his submissions with regard to such point of law.
Judgment of acquittal or conviction
265K.(1) After hearing arguments and points of law (if any), the Court shall give a judgment in the case.
(2) [Omitted by section 3 of the Code of Criminal Procedure (Second Amendment) Ordinance, 1983 (Ordinance No. XXXVII of 1983).]
Previous conviction
265L. In a case where a previous conviction is charged under the provisions of sub-section (7) of section 221, and the accused does not admit that he has been previously convicted as alleged in the charge, the Court may, after it has convicted the said accused under section 265E or section 265K, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:
Provided that no such charge shall be read out by the Court nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under section 265E or section 265K.]
Chapter XXIV
GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS
Tender of pardon to accomplice
337.(1) In the case of any offence triable exclusively by the [***] Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Penal Code, with imprisonment which may extend to seven years, or any offence under any of the following sections of the Penal Code, namely, sections 216A, 369, 401, 435 and 477A, [a Metropolitan Magistrate] or any Magistrate of the first class may, at any state of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof:
Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the [Chief Judicial Magistrate shall] exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the [Chief Judicial Magistrate] has been obtained to the exercise thereof.
(1A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record:
Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.
(2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any.
(2A) In every case where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, [send] him for trial to the Court of Session [* * *].
(3) Such persons, unless he is already on bail, shall be detained in custody until the termination of the trial.
Power to direct tender of pardon
338. At any time [before the judgment is passed, the Court of Session trying the case] may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender, or order [* * *] [or the Chief Metropolitan Magistrate or the Chief Judicial Magistrate] to tender, a pardon on the same condition to such person.
[Trial] of person to whom pardon has been tendered
339.(1) Where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter:
Provided that such person shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made; in which case it shall be for the prosecution to prove that such conditions have not been complied with.
(2) The statement made by a person who has accepted a tender of pardon may be given in evidence against him at such trial.
(3) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court Division.
Procedure in trial of person under section 339
[339A.(1) The Court trying under section 339 a person who has accepted a tender of pardon shall
(a) if the Court is [* * *] Court of Session before the charge is read out and explained to the accused under [section 265D, sub-section (2)], and
(b) if the Court is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made.
(2) If the accused does so plead, the Court shall record the plea and proceed with the trial, and [* * *] shall, before judgment is passed in the case find whether or not the accused has complied with the conditions of the pardon and if it is found that he has so complied, the Court shall, notwithstanding anything contained in this Code, pass judgment of acquittal.]
Trial in absentia
[339B. [(1) Where after the compliance with the requirements of section 87 and section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order [published in at least two national daily Bengali Newspapers having wide circulation], direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence.]
(2) Where in a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.
Time for disposal of cases
339C.(1) A Magistrate shall conclude the trial of a case within [one hundred and eighty days] from the date on which the case is [received by him] for trial.
(2) A Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge shall conclude the trial of a case within [three hundred and sixty days] from the date on which the case is received by him for trial.
[(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), where a person is accused in several cases and such cases are brought for trial before a Magistrate or a Court of Session, the time limit specified in sub-section (1) or sub-section (2) for the trial of such cases shall run consecutively.]
[(2B) Notwithstanding the transfer of a case from one Court to another Court, the time specified in sub-section (1) or sub-section (2) shall be the time for concluding the trial of a case.]
(3) [Omitted by section 3 of the Code of Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).]
[(4) If a trial cannot be concluded within the specified time, the accused in the case, if he is accused of a non-bailable offence, may be released on bail to the satisfaction of the Court, unless for reasons to be recorded in writing, the Court otherwise directs.]
[(5) Nothing in this section shall apply to the trial of a case under section 400 or 401 of the Penal Code (Act XLV of 1860), or to the trial of case to which the provisions of Chapter XXXIV apply.]
[(6) In this section, in determining the time for the purpose of a trial,-
[* * *]
(b) the days spent on account of the absconsion of an accused after his release on bail, if any, shall not be counted.]
Omitted
339D. [Omitted by section 4 of the Code of Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).]
Right of person against whom proceedings are instituted to be defended and his competency to be a witness
340.(1) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.
(2) Any person against whom proceedings are instituted in any such Court under section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under section 552, may offer himself as a witness in such proceedings.
[(3) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his own request in writing; or
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any persons charged together with him at the same trial.]
Procedure where accused does not understand proceedings
341. If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than High Court Division, if such [proceedings result] in a conviction, the proceedings shall be forwarded to the High Court Division with a report of the circumstances of the case, and the High Court Division shall pass thereon such order as it thinks fit.
Power to examine the accused
342.(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court [* * *] may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(4) No oath shall be administered to the accused.
No influence to be used to induce disclosures
343. Except as provided in sections 337 and 338, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.
Power to postpone or adjourn proceedings
344.(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Remand
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than High Court Division shall be in writing signed by the presiding Judge or Magistrate.
Reasonable cause for remand
Explanation- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Compounding offences
345.(1) The offences punishable under the sections of the Penal Code specified in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table:-
Offence. |
Sections of Penal Code applicable. |
Persons by whom offence may be compounded. |
Uttering works, etc., with deliberate intent to wound the religious feelings of any person. |
298 |
The person whose religious feelings are intended to be wounded. |
Causing hurt |
323,334 |
The person to whom the hurt is caused. |
Wrongfully restraining or confining any person. |
341, 342 |
The person restained or confined. |
Assault or use of criminal force |
352, 355, 358 |
The person assaulted or to whom criminal force is used. |
Unlawful compulsory labour |
374 |
The person compelled to labour. |
Mischief, when the only loss or damage caused is loss or damage to a private person. |
426, 427 |
The person to whom the loss or damage is caused. |
Criminal trespass House-trespass |
447 448 |
The person in possession of the property trespassed upon. |
Criminal breach of contract of service. |
490, 491, 492 |
The person with whom the offender has contracted. |
Adultery Enticing or taking away or detaining with criminal intent a married woman. |
497 498 |
The husband of the woman. |
Defamation Printing or engraving matter, knowing it to be defamatory. Sale of printed or engraved substance containing defamatory matter, knowing it to contain such matter. |
500 501 502 |
The person defamed. |
Insult intended to provoke a breach of the peace. |
504 |
The person insulted. |
Criminal intimidation except when the offence is punishable with imprisonment for seven years. |
506 |
The person intimidated. |
Act caused by making a person believe that he will be an object of divine displeasure. |
508 |
The person against whom the offence was committed. |
(2) The offences punishable under the sections of the Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that table
Offence. |
Sections of Penal Code applicable. |
Persons by whom offence may be compounded. |
[Rioting. |
147 |
The person against whom force or violence has been used. |
Rioting armed with deadly weapon. |
148 |
Ditto.] |
Voluntarily causing hurt by dangerous weapons or means. |
324 |
The person to whom hurt is caused. |
Voluntarily causing grievous hurt. |
325 |
Ditto. |
Voluntarily causing grievous hurt on grave and sudden provocation. |
335 |
The person to whom hurt is caused. |
[Act endangering human life or the personal safety of others. |
336 |
Ditto.] |
Causing hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others. House-trespass |
337 | Ditto. |
Causing grievous hurt by doing an act so rashly and negligently as to endanger human life or the personal safety of others. |
338 |
Ditto. |
Wrongfully confining a person for three days or more |
343 |
The person confined. |
[Wrongfully confining for ten or more days. |
344 |
Ditto.] |
Wrongfully confining a person in secret. |
346 |
Ditto. |
[Wrongfully confinement to extort property or constrain to illegal act. |
347 |
The person wrongfully confined. |
Wrongful confinement to extort confession or compel restoration of property. |
348 |
Ditto.] |
[Assault or criminal force to women with intent to outrage her modesty. |
354 |
The women assaulted or to whom the criminal force was used.] |
[Assault or criminal force in attempt to commit theft of property worn or carried by a person. |
356 |
The person assaulted or to whom criminal force is used.] |
Assault or criminal force in attempting wrongfully to confine a person. |
357 |
The person assaulted or to whom the force was used. |
[Theft [* * *]. |
379 |
The owner of the property stolen.] |
[Theft in dwelling house. |
380 |
Ditto] |
[Theft by clerk or servant of property in possession of master [* * *]. |
381 |
Ditto.] |
Dishonest misappropriation of property. |
403 |
The owner of the property misappropriated. |
[Criminal breach of trust [***]. |
406 |
The owner of the property in respect of which the breach of trust has been committed. |
Criminal breach of trust by a carrier, wharfinger, etc. [***]. |
407 |
Ditto. |
Criminal breach of trust by a clerk or servant [***]. |
408 |
Ditto. |
Dishonestly receiving stolen property, knowing it to be stolen [* * *]. |
411 |
The owner of the property stolen. |
Assisting in the concealment or disposal of stolen property, knowing it to be stolen [* * *]. |
414 |
Ditto.] |
Cheating |
417 |
The person cheated. |
Cheating a person whose interest the offender was bound, by law or by legal contract, to protect. |
418 |
Ditto. |
Cheating by personation |
419 |
Ditto. |
Cheating and dishonestly inducing delivery of property or the making, alteration or destruction of a valuable security. |
420 |
Ditto. |
[Fraudulent removal or concealment of property, etc. to prevent distribution among creditors. |
421 |
The creditors who are affected thereby. |
Fraudulently preventing from being made available for his creditors a debt or demand due to the offender. |
422 |
Ditto. |
Fraudulent execution of deed of transfer containing false statement of consideration. |
423 |
The person affected thereby. |
Fraudulent removal or concealment of property. |
424 |
Ditto. |
Mischief by killing or maiming animal [* * *]. |
428 |
The owner of the animal. |
Mischief by killing or maiming cattle, etc. [* * *]. |
429 |
The owner of the cattle, or animal.] |
Mischief by injury to work of irrigation by wrongfully diverting water when the only loss or damage caused is loss or damage to a private person. |
430 |
The person to whom the loss or damage is caused. |
House-trespass to commit an offence (other than theft) punishable with imprisonment. |
451 |
The person is possession of the house trespassed upon. |
Using a false trade or property mark. |
482 |
The person to whom loss or injury is caused by such use. |
Counterfeiting a trade or property mark used by another. |
483 |
The person whose trade or property mark is counterfeited. |
Knowingly selling, or exposing or possessing for sale or for trade or manufacturing purpose, goods marked with a counterfeit trade or property mark. |
486 |
Ditto |
[Cohabitation caused by a man deceitfully including a belief of lawful marriage. |
493 |
The woman with whom cohabitation was caused.] |
Marrying again during the life-time of a husband or wife. |
494 |
The husband or wife of the person so marrying. |
Uttering words or sounds or making gestures or exhibiting any object intending to insult the modesty of a woman or intruding upon the privacy of a woman. |
509 |
The woman whom it is intended to insult or whose privacy is intruded upon. |
[Attempting to commit offences punishable with transportation or imprisonment. |
511 |
The person against whom such attempt was made for committing the offence.] |
(3) When any offence is compoundable under this section, the abatement of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.
(4) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf may with the permission of the Court compound such offence.
(5) When the accused has been [sent] for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is 1[sent] or, as the case may be, before which the appeal is to be heard.
(5A) The High Court Division acting in the exercise of its powers of revision under section 439 [, and a Court of Session so acting under section 439A,] may allow any person to compound any offence which he is competent to compound under this section.
(6) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
(7) No offence shall be compounded except as provided by this section.
Procedure of [* * *] [Chief Judicial Magistrate] in cases which he cannot dispose of.
346.(1) If, in the course of an inquiry or a trial before a [Chief Judicial Magistrate] in any district, the evidence appears to him to warrant a presumption that the case is one which should be tried or 1[sent] for trial by some other [Chief Judicial Magistrate] in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any [Chief Judicial Magistrate]to whom he is subordinate or to such other [Chief Judicial Magistrate], having jurisdiction, as the District [Chief Judicial Magistrate] directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or [send] the accused for trial.
Procedure when, higher punishment should be inflicted on accused
[347. Notwithstanding anything contained in this Code, whenever a Magistrate of the first class is of opinion, after recording the evidence for the prosecution, that if the accused or, where more accused than one are being tried together, any of such accused is convicted he should receive a punishment more severe than that which such Magistrate is empowered to inflict, he may record his opinion and submit his proceedings, and forward the accused, or all the accused, to the Court of Session to which he is subordinate, whereupon the Court of Session shall try the case as if the case were exclusively triable by it under this Code.]
Trial of persons previously convicted of offences against coinage, stamp-law or property
348.(1) Whoever, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the Penal Code, with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three years or upwards, shall if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for [sending] the accused be [sent] to the Court of Session or [***] unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate sentence if the accused is convicted:
Provided that, if any Magistrate in the district has been invested with powers under section 30, the case may be transferred to him instead of being [sent] to the Court of Session.
(2) When any person is [sent] to the Court of Session [***] under sub-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly [sent] unless the Magistrate discharges such other person under [section 241A].
Procedure when Magistrate cannot pass sentence sufficiently severe
349.(1) Whenever a Magistrate of the second or third class, having jurisdiction, is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the [Chief Judicial Magistrate or a Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate ] to whom he is subordinate.
(1A) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub-section (1) in regard to any of such accused, he shall forward all the accused who are in his opinion guilty to the [Chief Judicial Magistrate or a Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate ].
(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law:
Provided that he shall not inflict a punishment more severe than he is empowered to inflict under sections 32 and 33.
Conviction on evidence partly recorded by one Sessions Judge, etc., and partly by another
[349A.(1) Whenever any Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, after having heard and recorded the whole or any part of the evidence in a trial, ceases to exercise jurisdiction therein, and is succeeded by another Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, who has and who exercises such jurisdiction, the Judge so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the trial:
Provided that if the succeeding Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, as the case may be, is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.
(2) When a case is transferred under the provisions of this Code from one Court of Session to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-section (1).]
Changes in constitution of Benches
[350A. No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under [section 15 and 16 or, as the case may be, section 19 and 21] , and the Magistrates constituting the same have been present on the Bench throughout the proceedings.]
Conviction [***] on evidence partly recorded by one Magistrate and partly by another
350.(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the inquiry or trial:
[Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.]
(2) Nothing in this section applies to cases in which proceedings have been stayed under section 346 or in which proceedings have been submitted to a superior Magistrate under section 349.
(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-section (1).
Detention of offenders attending Court
351.(1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place [* * *] after a trial has been begun the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.
Courts to be open
352. The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
Chapter XXV
OF THE MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS
Evidence to be taken in presence of accused
353. Except as otherwise expressly provided, all evidence taken under Chapters [* * *] XX, [* * *] XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
Manner of recording evidence
354. In inquiries and trials (other than summary trials) under this Code by or before a Magistrate or Sessions Judge, the evidence of the witnesses shall be recorded in the following manner.
Record [***] in trials of certain offences by first and second class Magistrates
355.(1) [In cases tried under Chapter XX or Chapter XXII] by a Magistrate of the first or second class and in all proceedings under section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.
(2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of his inability to do so, and shall cause such memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.
Record in other cases
356.(1) In all other trials before Courts of Session and Magistrates and in all inquiries under [Chapter XII] the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge.
Evidence given in English
(2) When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.
(2A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.
Memorandum when evidence not taken down by the Magistrate or Judge himself
(3) In cases in which the evidence is not taken down in writing by the Magistrate or Session Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it.
Language of record of evidence
357.(1) The Government may direct that in any district or part of a district, or in proceedings before any Court of Session, or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in section 356, be taken down by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate, and shall form part of the record:
Provided that the Government may direct the Sessions Judge or Magistrate to take down the evidence in the English language or in the language of the Court, although such language is not his mother-tongue.
Option to Magistrate in cases under section 355
358. In cases of the kind mentioned in section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provided in section 356, or, if within the local limits of the jurisdiction of such Magistrate the Government has made the order referred to in section 357, in the manner provided in the same section.
Mode of recording evidence under section 356 or section 357
359.(1) Evidence taken under section 356 or section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative.
(2) The Magistrate or Sessions Judge may, in his discretion take down, or cause to be taken down, any particular question and answer.
Procedure in regard to such evidence when completed
360.(1) As the evidence of each witness taken under section 356 or section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection make to it by the witness, and shall add such remarks as he thinks necessary.
(3) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language which he understands.
Interpretation of evidence to accused or his pleader
361.(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not under- stood by the pleader, it shall be interpreted to such pleader in that language.
(3) When documents are put in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.
Omitted
362. [Omitted by the Schedule of the Adaptation of Central Acts and Ordinances Order, 1949.]
Remarks respecting demeanor of witness
363. When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.
Examination of accused how recorded
364.(1) Whenever the accused is examined by any Magistrate, or by any Court other than High Court Division the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English: and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263.
Record of evidence in High Court Division
365. [The Supreme Court] shall from time to time, by general rule, prescribe the manner in which evidence shall be taken down in cases coming before the Court, and the evidence shall be taken down in accordance with such rule.
Chapter XXVI
OF THE JUDGMENT
Mode of delivering judgment
366.(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained-
(a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, and
(b) in the language of the Court, or in some other language which the accused or his pleader understands:
Provided that the whole judgment shall be read out by the presiding Judge, if he is requested so to do either by the prosecution or the defence.
(2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader.
(3) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties of their pleaders, or any of them, the notice of such day and place.
(4) Nothing in this section shall be construed to limit in any way the extent of the provisions of section 537.
Language of judgment
Contents of judgment
367.(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or form the dictation of such presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him.
(2) It shall specify the offence (if any) of which, and the section of the Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.
Judgment in alternative
(3) When the conviction is under the Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
[(5) If the accused is convicted of an offence punishable with death or, in the alternative, with [transportation for life] or imprisonment for a term of years, the Court shall in its judgment state the reasons for the sentence awarded.]
(6) For the purposes of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment.
Sentence of death.
368.(1) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
Sentence of transportation
(2) No sentence of transportation shall specify the place to which the person sentenced is to be transported.
Court not to alter judgment
369. Save as otherwise provided by this Code or by any other law for the time being in force [* * *], no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error.
Omitted
370. [Omitted by the Schedule of the Adaptation of Central Acts and Ordinances Order, 1949.]
Copy of judgment, etc., to be given to accused on application.Case of person sentenced to death
371.(1) On the application of the accused a copy of the judgment, or when he so desires, a translation in his own language, if practicable, or in the language of the Court, shall be given to him without delay. Such copy shall, in any case other than a [case under Chapter XX], be given free of cost.
(2) [Omitted by section 2 and Schedule of the Law Reforms Ordinances 1978 (Ordinance No. XLIX of 1978).]
(3) When the accused is sentenced to death by a Sessions Judge, such Judge shall further inform him of the period within which, if he wishes to appeal, his appeal should be preferred.
Judgment when to be translated
372. The original judgment shall be filed with the record of proceedings, and, where the original is recorded in a different language from that of the Court, and the accused so requires, a translation thereof into the language of the Court shall be added to such record.
Court of Session to send copy of finding and sentence to District Magistrate
373. In cases tried by the Court of Session, the Court shall forward a copy of its finding and sentence (if any) to the [Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be, and District Magistrate] within the local limits of whose jurisdiction the trial was held.
Chapter XXVII
OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION
Sentence of death to be submitted by Court of Session
374. When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court Division and the sentence shall not be executed unless it is confirmed by the High Court Division.
Power to direct further inquiry to be made or additional evidence to be taken
375.(1) If when such proceedings, are submitted the High Court Division thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
[(2) Unless the High Court Division otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.]
(3) When the inquiry and the evidence (if any) are not made and taken by the High Court Division, the result of such inquiry and the evidence shall be certified to such Court.
Power of High Court Division to confirm sentence or annul conviction
376. In any case submitted under section 374, [* * *] the High Court Division-
(a) may confirm the sentence, or pass any other sentence warranted by law, or
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.
Confirmation of new sentence to be signed by two Judges
377. In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court Division, shall, when such Court consists of two or more judges, be made, passed and signed by at least two of them.
Procedure in case of difference of opinion
378. When any such case is heard before a bench of Judges and such Judges are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such Judge, after such hearing as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion.
Procedure in cases submitted to High Court Division for confirmation
379. In cases submitted by the Court of Session to the High Court Division for the confirmation of a sentence of death, the proper officer of the High Court Division shall, without delay, after the order of confirmation or other order has been made by the High Court Division, send a copy of the order, under the seal of the High Court Division and attested with his official signature, to the Court of Session.
Chapter XXVIII
OF EXECUTION
Execution of order passed under section 376
381. When a sentence of death passed by a Court of Session is submitted to the High Court Division for confirmation, such Court of Session shall, on receiving the order of confirmation or other order of the High Court Division thereon, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
Postponement of capital sentence on pregnant woman
382. If a woman sentenced to death is found to be pregnant, the High Court Division shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to [transportation for life].
Execution of sentence of transportation or imprisonment in other cases
383. Where the accused is sentenced to transportation or imprisonment in cases other than those provided for by section 381, the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be, confined, and, unless the accused is already confined in such jail, shall forward him to such jail, with the warrant.
Direction of warrant for execution
384. Every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or is to be, confined.
Warrant with whom to be lodged
385. When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
Warrant for levy of fine
386.(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing is considers it necessary to do so.
(2) The Government may make rules regulating the manner in which warrants under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the Collector under sub-section (1), Clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the
Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the Decree, and all the provisions of that Code as to execution of decrees shall apply accordingly:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
Effect of such warrant
387. A warrant issued under section 386, sub-section (1), clause (a), by any Court may be executed within the local limits of the jurisdiction of such Court, and it shall authorize the attachment and sale of any such property without such limits, when endorsed by the District Magistrate [or Chief Metropolitan Magistrate] within the local limits of whose jurisdiction such property is found.
Suspension of execution of sentence of imprisonment.
388.(1) When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not paid forthwith, the Court may-
(a) order that the fine shall be payable either in full on or before a date not more than thirty days from the date of the order, or in two or three instalments, of which the first shall be payable on or before a date not more than thirty days from the date of the order and the other or others at an interval or at intervals, as the case may be, of not more than thirty days, and
(b) suspend the execution of the sentence of imprisonment and release the offender, on the execution by the offender of a bond, with or without sureties, as the Court thinks fit, conditioned for his appearance before the Court on the date or dates on or before which payment of the fine or the instalments thereof, as the case may be, is to be made; and if the amount of the fine or of any instalment, as the case may be is not realised on or before the latest date on which it is payable under the order, the Court may direct the sentence of imprisonment to be carried into execution at once.
(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith; and, if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub-section, fails to do so, the Court may at once pass sentence of imprisonment.
Who may issue warrant
389. Every warrant for the execution of any sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor in office.
Execution of sentence of whipping only
390. When the accused is sentenced to whipping only, the sentence shall subject to the provisions of section 391 be executed at such place and time as the Court may direct.
Execution of sentence of whipping, in addition to imprisonment
391. (1) When the accused-
(a) is sentenced to whipping only and furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, or
(b) is sentenced to whipping in addition to imprisonment,
the whipping shall not be inflicted until fifteen days from the date of the sentence, or, if an appeal is made within that time, until the sentence is confirmed by the Appellate Court, but the whipping shall be inflicted as soon as practicable after the expiry of the fifteen days, or, in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence.
(2) The whipping shall be inflicted in the presence of the officer in charge of the jail, unless the Judge or Magistrate orders is to be inflicted in his own presence.
(3) No accused person shall be sentenced to whipping in addition to imprisonment when the term of imprisonment to which he is sentenced is less than three months.
Mode of inflicting punishment
392.(1) In the case of a person of or over sixteen years of age whipping shall be inflicted with a light rattan not less than half an inch in diameter, in such mode, and on such part of the person, as the Government directs; and, in the case of a person under sixteen years of age, it shall be inflicted in such mode and on such part of the person, and with such instruments, as the Government directs.
Limit of number of stripes
(2) In no case shall such punishment exceed thirty stripes and, in the case of a person under sixteen years of age, it shall not exceed fifteen stripes.
Not to be executed by instalments Exemptions
393. No sentence of whipping shall be executed by instalments: and none of the following persons shall be punishable with whipping, namely:-
(a) females;
(b) males sentence to death or to [transportation], or to imprisonment for more than five years;
(c) males whom the Court considers to be more than forty-five years of age.
Whipping not to be inflicted if offender not in fit state of health
394.(1) The punishment of whipping shall not be inflicted unless a medical officer, if present, certificates, or, if there is not a medical officer present, unless it appears to the Magistrate or officer present, that the offender is in a fit state of health to undergo such punishment.
Stay of execution
(2) If, during the execution of a sentence of whipping, a medical officer certifies, or it appears to the Magistrate or officer present, that offender is not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally stopped.
Procedure if punishment cannot be inflicted under section 394
395.(1) In any case in which, under section 394, a sentence of whipping is, wholly or partially, prevented from being executed, the offender shall be kept in custody till the Court which passed the sentence can revise it; and the said Court may, at its discretion, either remit such sentence, or sentence the offender in lieu of whipping, or in lieu of so much of the sentence of whipping as was not executed, to imprisonment for any term not exceeding twelve months, or to a fine not exceeding five hundred Taka, which may be in addition to any other punishment to which he may have been sentenced for the same offence.
(2) Nothing in this section shall be deemed to authorize any Court to inflict imprisonment for a term or a fine of an amount exceeding that to which the accused is liable by law, or that which the said Court is competent to inflict.
Execution of sentences on escaped convicts
396.(1) When sentence is passed under this Code on an escaped convict, such sentence, if of death, fine or whipping, shall, subject to the provisions hereinbefore contained, take effect immediately, and, if of imprisonment, or transportation, shall take effect according to the following rules, that is to say-
(2) If the new sentence is severer in its kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately.
(3) When the new sentence is not severer in its kind than the sentence the convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment, or transportation, as the case may be, for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.
Explanation-For the purposes of this section-
(a) a sentence of transportation shall be deemed severer than a sentence of imprisonment;
(b) a sentence of imprisonment with solitary confinement shall be deemed severer than a sentence of the same description of imprisonment without solitary confinement; and
(c) a sentence of rigorous imprisonment shall be deemed severer than a sentence of simple imprisonment with or without solitary confinement.
Sentence on offender already sentenced for another offence
397. When a person already undergoing a sentence of imprisonment, or transportation, is sentenced to imprisonment, or transportation, such imprisonment, or transportation shall commence at the expiration of the imprisonment, or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that, if he is undergoing a sentence of imprisonment, and the sentence on such subsequent conviction is one of transportation, the Court may, in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced:
Provided, further, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
Saving as to sections 396 and 397
398.(1) Nothing in section 396 or section 397 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment, or to a sentence of transportation and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment, or transportation, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.
Confinement of youthful offenders in reformatories
399.(1) When any person under the age of fifteen years is sentenced by any Criminal Court to imprisonment for any offence, the Court may direct that such person, instead of being imprisoned in a criminal jail, shall be confined in any reformatory established by the Government as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry or which is kept by a person willing to obey such rules as the Government prescribes with regard to the discipline and training of persons confined therein.
(2) All persons confined under this section shall be subject to the rules so prescribed.
(3) [Omitted by section 3 and 2nd Schedule of the
Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).]
Return of warrant on execution of sentence
400. When a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.
Chapter XXIX
OF SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF SENTENCES
Power to suspend or remit sentences
401.(1) When any person has been sentenced to punishment for an offence, the Government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the Government for the suspension or remission of a sentence, the Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the Government not fulfilled, the Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police-officer without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(4A) The provision of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or impose any liability upon him or his property.
(5) Nothing herein contained shall be deemed to interfere with the right of the President [* * *] to grant pardons, reprieves, respites or remissions of punishment.
(5A) Where a conditional pardon is granted by the President [* * *], any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.
(6) The Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.
Power to commute punishment
402.(1) The Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it:-
death, transportation, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine.
(2) Nothing in this section shall affect the provisions of section 54 or section 55 of the Penal Code.
Sentences of death
[402A. The powers conferred by sections 401 and 402 upon the Government may, in the case of sentences of death, also be exercised by the President.]
Chapter XXX
OF PREVIOUS ACQUITTALS OR CONVICTIONS
Person once convicted or acquitted not to be tried for same offence
403.(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1).
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897, or section 188 of this Code.
Explanation- The dismissal of a complaint, the stopping of proceedings under section 249, [or the discharge of the accused] is not an acquittal for the purposes of this section.
Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant or, upon the same facts, with theft simply, or with criminal breach of trust.
(b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with, and tried for, robbery.
(c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
(d) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(e) A is charged by a Magistrate of the first class with, and convicted by him of voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within paragraph 3 of the section.
(f) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may be subsequently charged with, and tried for robbery on the same facts.
(g) A. B and C are charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for dacoity on the same facts.
