Criminal Procedure And Evidence - Procedure Before Commencement Of Trial (Ss 133-156) A. In The High Court (Ss 133-135)

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PART XI
Procedure before Commencement of Trial (ss 133-156)

A. IN THE HIGH COURT

(ss 133-135)

[Ch0802s133]133. Persons committed to be brought to trial at the first session

provided 31 days have elapsed from commitment

(1) Except where otherwise expressly provided in

this Act as to the adjournment of a court, every person committed for trial or

sentence whom the Director of Public Prosecutions has decided to prosecute

before the High Court shall be brought to trial at the first session of that

Court for the trial of criminal cases held after the date of the commitment, or

else shall be admitted to bail, if 31 days have elapsed between the date of

commitment and the time of holding such session, unless-

(a) the

Court is satisfied that, in consequence of the absence of material evidence or

for some other sufficient cause, the trial cannot then be proceeded with without

defeating the ends of justice; or

(b) before

the close of such first session an order has been obtained from the Court under

the provisions of section 134 for his removal for trial elsewhere.

(2) If such person is not brought to trial at the

first session of such Court held after the expiry of six months from the date

of his commitment, and has not previously been removed for trial elsewhere, he

shall be discharged from his imprisonment for the offence in respect of which

he has been committed.

(3) For the purposes of this section a person

shall not be deemed to have been committed for trial in any case in which the

Director of Public Prosecutions has, under section 94, ordered a further

examination to be taken, until such further examination has been completed.

(4) The accused, with his own consent in writing

and with the consent of the Director of Public Prosecutions, may be brought to

trial at any time after his commitment notwithstanding that the period of 31

days has not expired.

[Ch0802s134]134. Change of place of trial

(1) Whenever an indictment has been presented

against an accused person in the High Court, the judge may, upon application by

or on behalf of the Director of Public Prosecutions or by or on behalf of the

accused, order that the trial shall be held at some place other than that

specified in the indictment and at a time to be named in the order.

(2) When any order is made under this section, the

consequences shall be the same in all respects and with regard to all persons

as if the Director of Public Prosecutions had decided to prosecute the accused

at the place named in the order and at the time specified therein, and if he

has been admitted to bail, the recognizances of the bail are to be deemed to be

extended to that time and place accordingly.

(3) The recognizances of any persons who are bound

to attend as witnesses are in like manner to be deemed to be extended to the

same time and place.

(4) Notice of such time and place must be given to

the persons bound by the recognizances, otherwise their recognizances cannot be

forfeited.

[Ch0802s135]135. Such prisoners not brought to trial at second session after

commitment entitled to discharge from imprisonment

When a case has been removed for trial elsewhere

and the accused is in custody, the court granting the order of removal shall

issue a warrant directing his transmission forthwith to the gaol of the

district to which the case has been removed. The accused shall be brought to

trial at the next criminal session of the court to which the case has been

removed, or otherwise shall be discharged from his imprisonment for the offence

for which he was transmitted for trial.

B. IN MAGISTRATES'

COURTS (s 136)

[Ch0802s136]136. Commencement of proceedings if accused is in custody

When a person who was arrested upon a criminal

charge is brought up before a magistrate's court in terms of section 36 or

subsection (5) of section 39 such magistrate's court shall forthwith commence

his trial or a preparatory examination upon such charge or, if the matter is

cognizable by another court, remand him to such court.

C. GENERAL FOR ALL

COURTS (ss 137-156)

[Ch0802s137]137. Persons brought before wrong court

(1) If on the trial of a person charged with any

offence before the High Court or any magistrate's court it appears that he is

not properly triable before that court, he is not by reason thereof entitled to

be acquitted, but the court may, at the request of the accused, direct that he

be tried before some proper court and may remand him for trial accordingly.

(2) If he does not make such request the trial

shall proceed and the verdict and judgment shall have the same effect in all

respects as if the court had originally had jurisdiction to try the accused.

(3) This section shall not affect the right of the

accused to plead to the jurisdiction of a court.

[Ch0802s138]138. Trial of pending case may be postponed

Subject to the provisions of section 133, in a

case to be tried by the High Court, any court before which a criminal trial is

pending may, if it is necessary or expedient, postpone the trial until such

time, and to such place, and upon such terms, as to such court may seem proper,

and further postponements may, if necessary and expedient, be made from time to

time:

Provided that in the case of a magistrate's court,

such postponement shall not exceed 15 days if the accused is remanded in

custody, or one month if the accused is not remanded in custody.

[Ch0802s139]139. Adjournment of trial

A trial may, if it is necessary and expedient, be

adjourned at any period of the trial, whether evidence has or has not been

given.

[Ch0802s140]140. Powers of court on postponement or adjournment

(1) When a trial is postponed or adjourned as

aforesaid, the court may direct that the accused be detained until liberated in

accordance with law or admit him to bail or extend his bail, if he has already

been admitted to bail, and may extend the recognizances of the witnesses.

(2) When the trial of an accused who is not in

custody, and who has not been admitted to bail, is so postponed or adjourned he

shall be deemed to have been served with a summons to appear at the time and

place to which the trial was postponed or adjourned.

[Ch0802s141]141. Accused to plead to the indictment or summons

Subject to the provisions of section 307, the

accused shall, upon the day appointed for his trial or sentence upon any

indictment or summons, appear in court, or if he is in custody he shall be

brought into court, and shall be informed in open court of the offence with

which he is charged as set forth in the indictment or summons, and shall be

required to plead instantly thereto, except where, there being an indictment or

summons and the accused having objected so to plead, the court finds that he

has not been duly served with a copy thereof:

Provided that the court may at the request of the

prosecution or the accused or of its own motion, postpone the taking of a plea

if the Court considers this to be necessary in the interests of justice.

[Ch0802s142]142. Effect of plea

If the accused is indicted in the High Court after

having been admitted to bail, his plea to the indictment shall, unless the

Court otherwise directs, have the effect of terminating his bail and he shall

thereupon be detained in custody until the conclusion of the trial in the same

manner in every respect as if he had not been admitted to bail.

[Ch0802s143]143. Objections to indictment, etc. how and when to be made

(1) Every objection to an indictment or summons

for any formal defect apparent on the face thereof shall be taken before the

accused has pleaded but not afterwards.

(2) Every court before which any such objection is

taken for any formal defect may, if it is thought necessary, and the accused is

not prejudiced as to his defence, cause the indictment or summons to be

forthwith amended in such particular by some officer of the court or other

person, and thereupon the trial shall proceed as if no such defect had

appeared.

[Ch0802s144]144. Exceptions

(1) When the accused excepts only and does not

plead any plea, the court shall proceed to hear and determine the matter

forthwith. If the exception is overruled he shall be called upon to plead to

the indictment or summons.

(2) When the accused pleads and excepts together,

it shall be in the discretion of the court whether the plea or exception shall

be first disposed of.

[Ch0802s145]145. Proceedings if defence be an alibi

(1) If in any case the defence of the accused is

that commonly called an alibi, and the court before which the trial is

held considers that the accused might be prejudiced in making such defence if

proof were admitted that the act or offence in question was committed on some

day or time other than the day or time stated in the indictment or summons,

then, although the day or time proposed to be proved is within a period of

three months before or after the day stated in the indictment or summons, the

court shall reject such proof, and the accused shall be in the same plight and

condition as if he had not pleaded.

(2) If in any case no day is stated in the

indictment or summons or an impossible day or a day that never happened, the

accused may, at any time before pleading, apply to the court in which he is

indicted or charged, and such court shall, upon being satisfied by affidavit or

otherwise that the accused is likely to be prejudiced in his defence upon the

merits, unless some day or time were stated, make such order in that behalf as

in the circumstances of the particular case may seem just.

[Ch0802s146]146. Court may order delivery of particulars

(1) The Court may either before or at the trial,

in any case if it thinks fit, direct particulars to be delivered to the accused

or any matter alleged in the indictment or summons, and may, if necessary,

adjourn the trial for the purpose of the delivery of such particulars.

(2) Such particulars shall be delivered to the

accused or to his counsel or attorney without charge, and shall be entered in

the record; and the trial shall proceed in all respects as if the indictment or

summons had been amended in conformity with such particulars.

(3) In determining whether a particular is

required or not, and whether a defect in an indictment before the High Court or

on remittal to a magistrate's court is material to the substantial justice of

the case or not, the court may have regard to the preparatory examination.

[Ch0802s147]147. Motion to quash indictment, etc.

(1) The accused may, before pleading, apply to the

court to quash the indictment or summons on the ground that it is calculated to

prejudice or embarrass him in his defence.

(2) Upon such motion the court may quash the

indictment or summons, or may order it to be amended in such manner as the

court thinks just, or may refuse to make any order on the motion.

(3) If the accused alleges that he is wrongfully

named in the indictment or summons, the court may, on being satisfied by

affidavit or otherwise of the error, order it to be amended.

[Ch0802s148]148. Notice of motion to quash indictment, etc. and of certain pleas to

be given

When the accused intends to apply to have an

indictment or summons quashed under section 147, or to except, or to plead any

of the pleas mentioned in section 150, except the plea of guilty or not guilty,

he shall give reasonable notice (regard being had to the circumstances of each

particular case) to the Director of Public Prosecutions or his representative

if the trial is before the High Court, or to the public prosecutor if the trial

is before a magistrate's court or, when the prosecution is a private one, to

the private prosecutor, stating the grounds upon which he seeks to have the

indictment or summons quashed or upon which he bases his exception or plea. Any

such notice may be waived by the Director of Public Prosecutions, or such

prosecutor, as the case may be:

Provided that, on good cause shown, the court may

dispense with such notice or adjourn the trial to enable such notice to be

given.

[Ch0802s149]149. Certain discrepancies between indictment, etc. and evidence may be

corrected

(1) Whenever, on the trial of any indictment or

summons, there appears to be any variance between the statement therein and the

evidence offered in proof of such statement, or if it appears that any words or

particulars that ought to have been inserted in the indictment or summons have

been omitted, or that any words or particulars that ought to have been omitted

have been inserted, or that there is any other error in the indictment or

summons the court may at any time before judgment, if it considers that the

making of the necessary amendment in the indictment or summons will not

prejudice the accused in his defence, order that the indictment or summons be

amended, so far as it is necessary, by some officer of the court or other

person, both in that part thereof where the variance, omission, insertion, or

error occurs, and in every other part thereof which it may become necessary to

amend.

(2) The amendment may be made on such terms (if

any) as to postponing the trial as the court thinks reasonable. The indictment

or summons shall thereupon be amended in accordance with the order of the court

and, after any such amendment, the trial shall proceed at the appointed time

upon the amended indictment or summons, in the same manner and with the same

consequences in all respects as if it has been originally in its amended form.

(3) The fact that an indictment or summons has not

been amended as provided in this section shall not, unless the court has

refused to allow the amendment, affect the validity of the proceedings

thereunder.

[Ch0802s150]150. Pleas

(1) If the accused does not object that he has not

been duly served with a copy of the indictment or summons, or apply to have it

quashed under section 147, he shall either plead to it, or except to it on the

ground that it does not disclose any offence cognizable by the court. If he

pleads he may plead either-

(a) that he

is guilty of the offence charged, or with the concurrence of the prosecutor, of

any other offence of which he might be convicted on the indictment or summons;

(b) that he

is not guilty;

(c) that he

has already been convicted of the offence with which he is charged;

(d) that he

has already been acquitted of the offence with which he is charged;

(e) that he

has received a pardon for the offence charged;

(f) that

the court has no jurisdiction to try him for the offence; or

(g) that

the prosecutor has no title to prosecute.

(2) Two or more pleas may be pleaded together

except that the plea of guilty cannot be pleaded with any other plea to the

same charge.

(3) The accused may plead and except together.

(4) Any person who has once been called upon to

plead to any indictment or summons shall, except as is specifically provided in

this Act or in any other law, be entitled to demand that he be either acquitted

or found guilty:

Provided that in a magistrate's court, by leave of

the court and for reasons to be stated on the record of the proceedings, the

prosecution may withdraw the case at any time before the close of the case for

the prosecution, in which case the accused person shall be discharged without

prejudice to his being charged again for the same offence; the prosecutor may

withdraw the case at any time after the close of the case for the prosecution

before judgment by leave of the court and for reasons to be noted on the said

record in which case the accused shall be acquitted and discharged.

[Ch0802s151]151. Truth of defamatory matter to be specially pleaded

(1) A person charged with the unlawful publication

of defamatory matter, who sets up as a defence that the defamatory matter is

true and that it was for the public benefit that the publication should be

made, shall plead that matter specially, and may plead it with any other plea

except the plea of guilty.

(2) Notice of such plea shall, unless waived, be

given as provided in section 148.

[Ch0802s152]152. Person committed or remitted for sentence

(1) When a person has been committed to the High

Court by a magistrate's court for sentence, or his case has been remitted by

the Director of Public Prosecutions to a magistrate's court for sentence, he

shall be called upon to plead to the indictment or summons in the same manner

as if he had, in the case of such committal, been committed for trial, and, in

the case of such remittal, as if he were being tried summarily, and may plead

either that he is guilty of the offence charged, or with the concurrence of the

prosecutor, of any other offence of which he might be convicted on the

indictment or summons.

(2) If he pleads that he is not guilty, the court

shall, upon being satisfied that he duly admitted before the magistrate's court

that he was guilty of the offence charged, and was so guilty, direct a plea of

guilty to be entered or enter such plea notwithstanding his plea of not guilty.

(3) A plea so entered has the same effect as if it

had been actually pleaded.

(4) If the court is not so satisfied, or if

notwithstanding that the accused pleads guilty it appears upon an examination

of the depositions of the witnesses that he has not in fact committed the

offence charged or any other offence of which he might be convicted on the indictment

or summons, the plea of not guilty shall be entered and the trial shall proceed

as in other cases when that plea is entered.

[Ch0802s153]153. Accused refusing to plead

If the accused, when called upon to plead to an

indictment or summons, will not plead or answer directly thereto, the court

may, if it thinks fit, order a plea of not guilty to be entered on behalf of

the accused. A plea so entered has the same effect as if it had been actually

pleaded.

[Ch0802s154]154. Statement of accused sufficient plea of former conviction or

acquittal

In any plea of a former conviction or acquittal it

shall be sufficient for an accused to state that he has been lawfully convicted

or acquitted (as the case may be) of the offence charged.

[Ch0802s155]155. Trial on plea to the jurisdiction

Upon a plea to the jurisdiction of the court, the

court shall proceed to satisfy itself in such manner and upon such evidence as

it thinks fit, whether it has jurisdiction or not.

[Ch0802s156]156. Issues raised by plea to be tried

If the accused pleads any plea or pleas, other than the plea of guilty

or a plea to the jurisdiction of the court, he is, by such plea without any

further form, deemed to have demanded that the issue raised by such plea or

pleas shall be tried by the court.