Malawi
Criminal Procedure and Evidence Code
Act 36 of 1967
- Commenced on 1 February 1968
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short title
2. Interpretation
In this Code, unless the context otherwise requires—"arrestable offence" means an offence for which a police officer may, in accordance with the First Schedule or under any law for the time being in force, arrest without warrant;"character" includes reputation and disposition;"complaint" means an allegation that some person known or unknown has committed an offence;"court" means the High Court and any subordinate court;"document" means anything in or on which information of any description is recorded, and includes—(a)anything in or on which there is writing;(b)anything is or on which there are marks, figures, symbols or perforations having meaning for a person qualified to interpret them;(c)anything from which sounds, images or writing can be produced, with or without the aid of anything else;(d)a map, a plan, drawing, photograph or similar thing;(e)any disc, tape, soundtrack or other device on which sounds or other data, not being visual images, are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom; and(f)any film, negative, tape or other device on which one or more visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom;"evidence" means information of any description which facts tend to be proved, and includes—(a)oral evidence, that is to say all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry; and(b)documentary evidence, that is to say all documents produced for the inspection of the court;"fact" includes—(a)any thing, state of things, or relation to things capable of being perceived by the senses; and(b)any mental condition of which any person is conscious;"fact in issue" means any fact from which, either by itself or in connexion with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any proceeding necessarily follows;"mental hospital" bears the meaning ascribed to that term in section 2 of the Mental Treatment Act;"non-arrestable offence" means an offence for which a police officer requires a warrant to make an arrest;"police officer in charge of a police station" means the senior police officer on duty at a police station at the time in question;"police station" means any post or place appointed by the Inspector General to be a police station;"preliminary inquiry" means an inquiry into a criminal charge held by a subordinate court with a view to the committal of the accused person for trial before the High Court;"proclaimed person" or "proclaimed offender" means any person in respect of whom a proclamation has been published under section 106;"Public Prosecutor" means the Director of Public Prosecutions, or, subject to his or her general or special instructions or to an Act of Parliament—(a)persons in the public service acting as his or her subordinates; or(b)such other legally qualified persons acting on instructions from the Director of Public Prosecutions;"Registrar" means the Registrar of the High Court and includes a deputy Registrar and an Assistant Registrar;"Resident Magistrate" means a Resident Magistrate appointed under section 111 of the Constitution;"subordinate court" means any court of a magistrate or any other court subordinate to the High Court;"summary committal procedure" means the procedure provided for in Part IX - for the committal of an accused person by a subordinate court for trial before the High Court without the necessity for holding or completing a preliminary inquiry;"summary trial" means a trial by a subordinate court under Part VII;"Sunday" includes Saturday and public holiday;"traditional or local court" means a traditional or local court provided for under section 110 of the Constitution.[14 of 2010]3. Principle on which Code is to be applied
The principle that substantial justice should be done without undue regard for technicality shall at all times be adhered to in applying this Code.4. Finding, etc., not to be set aside merely because proceedings in wrong place
No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings, in the course of which it was arrived at or passed, took place in a wrong Region, District or other local area, unless it appears that such error has in fact occasioned a failure of justice.5. Finding, etc., not to be reversed, etc. on account of errors not occassioning failure of justice
6. Trial of offences under Penal Code and other laws
Part II – Powers of courts and special areas
7. Offences under Penal Code
Subject to the other provisions of this Code, any offence under the Penal Code [Cap. 7:01] may be tried by the High Court.8. ***
[Repealed by 31 of 1969].9. Offences under laws other than Penal Code
10. Sentences and orders which High Court may pass
The High Court may pass any sentence or order authorized by law.[14 of 2010]11. Power of certain courts to pass sentence of imprisonment for protection of public
Where a person, who is not less than twenty-one years of age—12. Combination of sentences
Subject to section 14 any court may pass any lawful sentence combining any of the sentences which it is authorized by law to pass.13. General jurisdiction of subordinate courts
14. Sentences which subordinate courts may pass
15. Certain sentences to be confirmed on review by High Court before being given effect, etc.
16. Release on bail pending order of the High Court
17. Sentences in cases of conviction of several offences at one trial
18. Appointment of special areas
The President, in his discretion, may by order direct that any area in Malaŵi shall be a special area for the purposes of this Code.19. Magisterial powers to officers in charge of special areas
The Minister may by notice published in the Gazette confer upon any officer in charge of a special area all or any of the powers conferred or conferrable on a magistrate of the first, second, or third grade.[23 of 1965]Part III – General provisions
20. Arrest, how made
20A. Information to be supplied on arrest
20B. Voluntary attendance at police station
Where, for the purpose of assisting with an investigation, a person attends voluntarily at a police station or at any other place where a police officer is present or accompanies a police officer to a police station or any other such place without having been arrested—20C. Arrest for further offence
Where a person has been arrested for an offence and is in custody in consequence of that arrest, and it appears to the police officer that if the person were released from that arrest he would be liable to arrest for some other offence, he shall be arrested for that other offence.[14 of 2010]20D. Additional rights of children and young persons under arrest
21. Search of place entered by person arrested
22. Powers to break open doors and windows for purposes of liberation
Any police officer or other person authorized to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.23. No unnecessary restraint
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.24. Search of arrested persons
24A. Entry and search after arrest
25. Power of police officer to search and detain aircraft, vessel or vehicle and persons in certain circumstances
26. Mode of search of women and men
27. Power to seize offensive weapons
The officer or other person making any arrest may take from the person arrested any offensive weapon which he has about his person, and shall deliver all weapons so taken to a court or the officer before whom the officer or person making the arrest is required by law to produce the person arrested.28. Arrest by police officer without warrant
Any police officer may, without an order from a magistrate and without a warrant, arrest—29. Arrest of vagabonds, habitual robbers, etc
Any police officer may without an order from a magistrate and without a warrant, arrest or cause to be arrested—30. Procedure when police officer deputes subordinate to arrest without warrant
When any police officer of the rank of inspector or above requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made.31. Refusal to give name and residence
32. Disposal of persons arrested by police officers
A police officer making an arrest without a warrant shall, without unnecessary delay and in any event not later than forty-eight hours, or if the period of forty-eight hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, take or send the person arrested before a magistrate or traditional or local court having jurisdiction in the case.[14 of 2010]32A. Powers to release and caution by the police
33. Arrest by a private person
34. Disposal of person arrested by private person
35. Detention of persons arrested without warrant
36. Police to report apprehensions
Police officers in charge of police stations shall report to the nearest magistrate the cases of all persons arrested within the limits of their respective areas, whether such persons have been admitted to bail or otherwise.[14 of 2010]37. Offence committed in magistrate’s presence
When any offence is committed in the presence of a magistrate he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.38. Arrest by magistrate
Any magistrate may at any time arrest or direct the arrest in his presence of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.39. Recapture of person escaping
If a person in lawful custody escapes or is rescued, the person from whose custody he escapes or is rescued may immediately pursue and arrest him in any place in Malaŵi.40. Provisions of sections 21 and 22 to apply to arrests under section 39
Sections 21 and 22 shall apply to arrest under section 39 although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest.41. Assistance to magistrate or police officer
Every person is bound to assist a magistrate or police officer reasonably demanding his aid—42. Security for keeping the peace
43. Security for good behaviour from persons disseminating seditious matters, etc.
Where a Resident Magistrate or a magistrate of the first or second grade has information that there is any person who either orally or in writing or in any other manner, disseminates or attempts to disseminate, or in any wise abets the dissemination of—44. Security for good behaviour from vagrants and suspected persons
Where a Resident Magistrate or a magistrate of the first or second grade receives information—45. Security for good behaviour from habitual offenders
Where a Resident Magistrate or a magistrate of the first or second grade receives information that any person—46. Order to be made
Where a magistrate acting under section 42, 43, 44 or 45 deems it necessary to require any person to show cause under any such section, he shall make an order in writing setting forth—47. Procedure in respect of person present in court
If the person in respect of whom an order is made under section 46 is present in court, it shall be read over to him and the substance thereof shall be explained to him.[14 of 2010]48. Summons or warrant in case of person not so present
49. Copy of order under section 46 to accompany summons or warrant
Every summons or warrant issued under section 48 shall be accompanied by a copy of the order made under section 46, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with or arrested under the summons or warrant.[14 of 2020]50. Power to dispense with personal attendance
The magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace, and may permit him to appear by legal practitioner.[14 of 2010]51. Inquiry as to truth of information
52. Order to give security
53. Conditions of bonds
Where any person is required by any court to execute a bond, with or without sureties, and in such bond the person executing it binds himself to keep the peace or binds himself to be of good behaviour, the court may require that there shall be included in such bond one or more of the following conditions—54. Discharge of person informed against
If on an inquiry under section 51 it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, the magistrate shall make an entry on the record to that effect, and, if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.55. Commencement of period for which security is required
56. Contents of bond
The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit or aiding, abetting, counselling, or procuring the commission of any offence punishable with imprisonment, wherever it may be committed, shall be a breach of the bond.57. Power to reject sureties
A magistrate may refuse to accept any surety offered under any of the provisions of this Part on the ground that, for reasons to be recorded by the magistrate, such surety is an unfit person.58. Procedure on failure of person to give security
59. Power to release persons imprisoned for failure to give security
Where a Resident Magistrate or a magistrate of the first or second grade is of the opinion that any person imprisoned for failing to give security may be released without hazard to the community, such magistrate shall make an immediate report of the case for the orders of the High Court, and such Court may, if it thinks fit, order such person to be discharged.[14 of 2010]60. Power of High Court to cancel bond
The High Court may at any time, for sufficient reason to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under any of the preceding sections of this Part by order of any court.[14 of 2010]61. Discharge of sureties
62. Police to prevent arrestable offences
Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability prevent, the commission of any arrestable offence.[14 of 2010]63. Information of design to commit such offences
Every police officer receiving information of a design to commit any arrestable offence shall communicate any such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.[14 of 2010]64. Arrest to prevent such offences
A police officer knowing of a design to commit any arrestable offence may arrest, without orders from a magistrate and without a warrant, the person so designing if it appears to such officer that the commission of the offence cannot otherwise be prevented.[14 of 2010]65. Prevention of injury to public property, etc.
A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any things mentioned in section 41 (b).[14 of 2010]Part IV – Provisions relating to all criminal proceedings
66. General authority of courts of Malaŵi
Every court has authority to cause to be brought before it any person who is in Malaŵi and is charged with an offence committed within Malaŵi or partly within and partly beyond Malaŵi or which according to law may be dealt with by it and to deal with the accused person according to its jurisdiction.67. Powers of High Court
The High Court may inquire into and try any offence subject to its jurisdiction at any place within Malaŵi:Provided that—68. Place and date of sessions of the High Court
69. Ordinary place of inquiry and trial
Subject to section 67 and to the powers of transfer conferred by sections 74 and 75 every offence shall ordinarily—70. High Court to decide in cases of doubt
71. Court to be open and may be held on a Sunday
71A. Evidence of victims of sexual offences
72. Removal of person to another prison by warrant
A magistrate may on the application of the Director of Public Prosecutions grant a warrant for the removal of any person detained by virtue of a warrant in a prison on any criminal charge to any prison specified in such application therein to be detained for further examination or for trial, or until released or removed therefrom in due course of law.[14 of 2010]73. Transfer of case to another subordinate court before inquiry or trial and transfer of trial to another subordinate court
74. Transfer to another magistrate after commencement of inquiry or trial
75. Power of High Court to change venue
76. Director of Public Prosecutions
77. Power to enter discontinuance
78. ***
[Repealed by 14 of 2010]79. Power to appoint public prosecutors
80. Powers of public prosecutors
A public prosecutor may appear and plead without any written authority before any court in which any case of which he has charge is under inquiry, trial or appeal; and if any private person instructs legal practitioner to prosecute in any such case a public prosecutor may conduct the prosecution, and the legal practitioner so instructed shall act therein under the directions of the public prosecutor.[14 of 2010]81. Withdrawal from prosecution in trials before subordinate courts
In any trial before a subordinate court any public prosecutor may, with the consent of the court or on the instruction of the Director of Public Prosecutions, at any time before judgment is pronounced, withdraw from the prosecution of any person; and upon such withdrawal—82. Permission to conduct prosecution
83. Mode of instituting proceedings
84. Issue of summons or warrant
85. Form and contents of summons
86. Penalty for non-attendance of accused
Any accused summoned to attend before a court who, without lawful excuse, fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the court, or fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine of K50,000.[14 of 2010]87. Service of summons
88. Service when person summoned cannot be found
Where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult member of his family or with his adult servant residing with him or with his employer; and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefore on the back of the other duplicate.[14 of 2010]89. Procedure when service cannot be effected as before provided
If service in the manner provided by section 87 or section 88 cannot by the exercise of due diligence be affected, the serving officers shall affix one of the duplicates of the summons to some conspicuous part of the house in which the person summoned ordinarily resides, and thereupon the summons shall be deemed to have been duly served.90. Service on servant of government
Where the person summoned is in the service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed, and such head shall thereupon cause the summons to be served in the manner provided by section 87 and shall return it to the court under his signature with the endorsement required by that section. Such signature shall be evidence of the service.91. Service of summons on company, etc.
92. Proof of service
93. Power to dispense with personal attendance of accused
94. Warrant after issue of summons
Notwithstanding the issue of a summons, a court may issue a warrant at any time before or after the time appointed in the summons for the appearance of the accused.95. Summons disobeyed
96. Form, contents and duration of warrant of arrest
97. Court may direct security to be taken
98. Warrants, to whom directed
A warrant of arrest may be directed to one more police officer, or to one police officer and to all other police officers of the District, or generally to all police officer; but any court issuing such a warrant may, if its immediate execution is necessary, and no police office is immediately available, direct it to any other person or persons, and such person or persons shall execute the same.[14 of 2010]99. Effect of addressing warrant to more than one officer or person
When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.100. Execution of warrant directed to police officer
A warrant directed to any police officer may also be executed by any officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed.101. Notification of substance of warrant
The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.102. Person arrested to be brought before the court without delay
The police officer or other person executing a warrant of arrest shall, subject to the provisions of section 97 as to security, without unnecessary delay bring the person arrested before the court before which he is required by law to produce such person.[14 of 2010]103. Where warrant of arrest may be executed
A warrant of arrest may be executed at any place in Malaŵi and on any day including Sunday.[14 of 2010]104. Procedure on arrest of person
105. Irregularities in warrant
106. Proclamation for person absconding
107. Attachment of property of proclaimed person
108. Restoration of attached property
109. Power to take bond for appearance
Where any person for whose appearance or arrest any court is empowered to issue a summons or warrant is present in such court, the court may require such person to execute a bond, with or without sureties, for his appearance in such court.[14 of 2010]110. Arrest for breach of bond for appearance
When any person who is bound by any bond taken under this Code to appear before a court does not so appear, such court may issue a warrant directing that such person be arrested and produced before it.111. Power of court to order prisoner to be brought before it
112. Provisions of this Part generally applicable to summonses and warrant
The provisions contained in this Part relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.[14 of 2010]113. Power to issue search warrant
113A. Search warrant
114. Execution of search warrant
Every search warrant may be issued on any day including Sunday between the hours of sunrise and sunset, but the court may, by the warrant, in its discretion, authorize the police officer or other person to whom it is addressed to execute it at any hour.115. Persons in charge of closed place to allow entry
116. Detention of property seized
117. Provisions applicable to search warrants
Section 96 (1) and (3) and sections 98, 99, 100, 103, 104 and 105 shall, so far as may be, apply to all search warrants issued under 113.118. Bail in certain cases
119. Bail bond
120. Discharge from custody
121. Deposit in place of, or in addition to, bond
122. Power to order sufficient bail when that first taken is insufficient
If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do may commit him to prison until the trial or until the court shall see fit to admit him to bail upon a fresh bond.123. Discharge and death of sureties
124. Person bound by bond absconding may be committed
If it is made to appear to any court, by information upon oath, that any person bound by bond is about to leave Malaŵi, the court may cause him to be arrested and may commit him to prison until the trial, unless the court shall see fit to admit him to bail upon a fresh bond.125. Forfeiture of bond
126. Offences to be specified with necessary particulars
Every charge shall contain, and shall be sufficient if it contains—127. Joinder of counts in a charge and joinder of two or more accused in one charge
128. Rules for the framing of charges
The following provisions shall apply to all charges and notwithstanding any rule of law or practice, a charge shall, subject to this Code, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this Code—129. Previous conviction or acquittal of same offence
Where an act or omission constitutes an offence under two or more written laws, the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under any one of such laws, but shall not, while a conviction or acquittal of an offence by a court has not been set aside, be liable to be tried again on the same facts for substantially the same offence:Provided that a person convicted or acquitted of an offence may afterwards be tried for any distinct offence with which he might have been charged under section 127 at the trial at which he was so convicted or acquitted.[23 of 1968]130. Consequences supervening and not known at time of former trial
A person convicted or acquitted of any act causing consequences which together with such act constitute a different offence from that for which such person was convicted or acquitted, may be afterward tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he was acquitted or convicted.131. Pleas that accused has been previously acquitted or convicted of same offence
132. Where original court was not competent to try subsequent charge
A person convicted or acquitted of any offence constituted by any acts may, notwithstanding such conviction or acquittal be subsequently charged with and tried for any other offence constituted by the same acts which he may have committed, if the court by which he was first tried was not competent to try the offence with which he is subsequently charged.133. Inquiry by court as to unsoundness of mind
134. Defence of insanity at preliminary inquiry
When the accused appears to be of sound mind at the time of the preliminary inquiry, the court, notwithstanding that it is alleged that at the time when the act was committed in respect of which the accused is charged he was by reason of unsoundness of mind incapable of knowing the nature of the act or that it was wrong or contrary to law, shall proceed with the case and, if the accused ought, in the opinion of the court, to be committed for trial, the court shall so commit him.135. Defence of insanity on trial
136. Certificate of medical officer as to sanity to be evidence
If, while an accused is detained in a mental hospital under a reception order made under section 133 (4), the medical officer in charge of such mental hospital certifies to the court that he is satisfied that the accused can properly be tried, he shall remit the accused to prison to be brought before the court at such time as the court appoints to be dealt with according to law and the certificate of such medical officer shall be receivable in evidence. The medical officer shall forward a copy of such medical certificate to the officer in charge of the prison to which he remits the accused and such certificate shall be sufficient authority for the reception of the accused into such prison and for his detention until he is so dealt with by the court. The court may in its discretion cause the medical practitioner to be summoned to give oral evidence at the hearing. On the arrival of the accused at the prison the order made under section 133 (4) shall cease to have effect. When the accused is brought before the court, if the court considers him capable of making his defence, the preliminary inquiry or trial shall proceed. If the court considers the accused to be still incapable of making, it shall act as if the accused were brought before it for the first time.137. Authority and effect of reception orders made under section 133 or 135
Subject to sections 133 (4) and 135, a reception order made thereunder shall have the same authority and effect as a reception order lawfully made under section 20 of the Mental Treatment Act [Cap. 34:02] and the court by which any such order as aforesaid is made may give such directions as it thinks fit for the conveyance of the accused to whom the order relates to a place of safety and his detention therein pending his admission to the mental hospital.138. Procedure where accused does not understand proceedings
If the accused, though not insane, cannot be made to understand the proceedings, the court may proceed with the preliminary inquiry or trial; and in the case of a court other than the High Court, if such trial results in a conviction the proceedings shall be forwarded to the High Court with a report of the circumstances, and the High Court shall make thereon such order as it thinks fit.139. Mode of delivering of judgment
140. Contents of judgments
141. Copy of judgment, etc., to be given to accused on application
On the application of the accused a copy of the judgment or, when he so desires, a translation in a language he understands, if practicable, shall be given to him without delay. There shall be payable for such copy such fee, if any, as may be prescribed.[14 of 2010]142. Costs against accused or private prosecutor
143. Order to pay costs appellable
An appeal shall lie from any order awarding costs under section 142 if made by a magistrate to the High Court and if by a judge to the Supreme Court of Appeal. The appellate court shall have power to make such order regarding the costs of the appeal as it shall deem reasonable.[14 of 2010]144. Costs and compensation to be specified in order, how recoverable
145. Power of court to award expenses or compensation out of fine
146. Payment of amount awarded under section 145, etc.
147. Property found on accused person
Where, on the apprehension of a person charged with an offence, any property is taken from him, the court before which he is charged may order—148. Restitution of stolen property
149. Disposal of property
150. When offence proved is included in offence charged
151. Alteration of charge, etc.
152. Person charged with any offence may be convicted of attempt
When a person is charged with an offence, he may be convicted of having attempted to commit that offence, although he was not charged with the attempt.153. Alternative verdicts in various offenced involving the homicide of children
154. Alternative verdict in charge of manslaughter from driving of motor vehicle
When a person is charged with manslaughter in connexion with the driving of a motor vehicle by him and the court is of opinion or the jury finds, as the case may be, that he is not guilty of that offence, but that he is guilty of an offence under section 126, 127 or 128 of the Road Traffic Act [Cap. 69:01], or under any law in substitution therefor, he may be convicted of that offence although he was not charged with it.[23 of 1968][14 of 2010]155. Alternative verdict in charges of rape and kindred offences
156. Person charged with burglary, etc., may be convicted of kindred offence
When a person is charged with an offence mentioned in Chapter XXIX of the Penal Code [Cap. 7:01] and the court is of opinion or the jury finds, as the case may be, that he is not guilty of any other offence mentioned in the said Chapter, he may be convicted of that other offence although he was not charged with it.[23 of 1968]157. Alternative verdicts in charges of stealing and kindred offences
158. Construction of sections 150 to 157
Sections 150 to 157, inclusive, shall be construed as being in addition to, and not in derogation of, any other written law and the other provisions of this Code, and sections 152 to 157, inclusive, shall be construed as being without prejudice to the generality of sections 150 and 151.159. Person charged with misdemeanour not to be acquitted if felony proved, unless court so directs
160. ***
[Repealed by 14 of 2010].161. Promotion of reconciliation
In all cases a court may, without formality, promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any other offence of a personal or private nature not amounting to felony, and not aggravated in degree, on terms of payment of compensation or other terms approved by the court and may thereupon order the proceedings to be stayed or terminated.[14 of 2010]Part IVA – Pre-trial custody time limits
161A. Pre-trial custody time limits
An accused person may be held in lawful custody in relation to an offence while awaiting the commencement of his trial in accordance with the periods specified under this Part.[14 of 2010]161B. Interpretation
In this Part, unless the context otherwise requires, "lawful custody" means custody sanctioned by a court order pending trial.[14 of 2010]161C. Reckoning of time
161D. Custody time limit for offences triable in subordinate courts
The maximum period that a person accused of an offence triable in a subordinate court may be held in lawful custody pending commencement of his trial in relation to the offence shall be thirty days.[14 of 2010]161E. Custody time limit in relation to committal proceedings
The maximum period that a person accused of an offence triable in the High Court may be held in lawful custody pending his committal for trial to that Court under Part VIII or Part IX of this Code in relation to that offence shall be thirty days.[14 of 2010]161F. Custody time limit for offences triable in the High Court
Where a person accused of an offence triable in the High Court is committed to the High Court for trial, the maximum period that he may be held in lawful custody pending commencement of his trial in relation to that offence shall be sixty days.[14 of 2010]161G. Custody time limit for serious offences
The maximum period that a person accused of treason, genocide, murder, rape, defilement and robbery may be held in lawful custody pending commencement of his trial in relation to that offence shall be ninety days.[14 of 2010]161H. Extension of custody time limit
161I. Bail on expiry of custody time limit
At the expiry of a custody time limit or of any extension thereof, the Court may of its own motion or on application by or behalf of the accused person or on information by the prosecution, grant bail to an accused person.[14 of 2010]161J. Application of general law on bail
Nothing in this Part shall preclude an accused person in lawful custody from otherwise applying for bail under any other law during the subsistence of a custody time limit.[14 of 2010]Part V – Mode of taking and recording evidence in inquiries and trial
162. Evidence to be taken in presence of accused
Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the accused, or, when his personal attendance has been dispensed with, in the presence of his legal practitioner, if any.[14 of 2010]163. Manner of recording evidence before magistrate
In inquiries and trials, other than trials under section 159, by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner—164. Interpretation of evidence to accused or his legal practitioner
165. Cases heard by one magistrate continued by another magistrate
166. Sentence by one magistrate of person convicted by another magistrate
Whenever any magistrate who has presided at any trial which has resulted in the conviction of the accused, ceases to exercise jurisdiction before sentence has been passed, and is succeeded, whether by virtue of an order of transfer under this Code or otherwise, by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may sentence the accused or may make any order in such case which he could have made if he himself had convicted the accused.167. Record of evidence in High Court and subordinate courts
The Chief Justice may from time to time, by rules, prescribe the manner in which evidence shall be taken down in cases coming before the High Court and subordinate courts and the judges and magistrates, as the case may be, shall take down the evidence or the substance thereof, in accordance with such rules.Part VI – Evidence in criminal proceedings
168. Application of this part
This Part shall apply to all criminal proceedings in or before the High Court and all subordinate courts.169. When a fact said to be proved, disproved and not proved
170. Presumptions
171. Relevancy of facts
172. Admissibility of evidence
173. Statement of person who cannot be called as witness
A statement, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, is itself a relevant fact—174. Relevancy of statements made in special circumstances
175. Proof of facts by written statement
176. Confessions
177. Evidence of persons who are seriously ill
178. Relevancy of certain evidence for proving in subsequent proceeding the truth of facts stated therein
179. Admissibility of photographs, plans
A photograph or plan relating to any matter which is relevant to the issue in any proceedings shall be admissible in evidence at any stage of such proceedings if the evidence of any person who is a competent and compellable witness in such proceedings and upon whose indications or observations such photograph or plan was taken or prepared is given either before or after such photograph or plan is put in by the party tendering such evidence.180. Admissibility of the reports of experts
181. How previous convictions may be proved
182. Judicial notice
183. Proof by formal admission
184. Hearsay evidence not admissible, etc.
185. Previous judgments relevant to bar a second trial
The existence of any judgment, order or decree which by law prevents any court from holding a trial is a relevant fact when the question is whether such court ought to hold such trial.186. Relevancy of certain judgments conferring legal character, etc.
187. Burden of proof
188. Burden of proving that case of accused comes within exceptions and facts especially within his knowledge
189. Burden of proving death, partnership, etc.
190. Opinions of experts
191. Opinions as to handwriting, customs, tenets, etc.
192. Character of the accused
193. Evidence by accused for the defence
193A. Evidence of alibi
194. Evidence by husband and wife of an accused
A husband or wife of an accused shall be a competent and compellable witness for the prosecution or for the defence at every stage of any proceedings:Provided that such husband or wife shall not be called as a witness for the defence except upon the application of the accused.195. Summons for witness
If it is made to appear that evidence material to any criminal cause or matter before, or pending before, any court can be given by, or is in the possession of, any person, it shall be lawful for a police officer of the rank of Assistant Superintendent or above, or the Registrar of the High Court, or the magistrate having cognizance of such cause or matter, to issue a summons to such person requiring his attendance before such court or requiring him to bring and produce to such court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons.[5 of 1969]196. Warrant for witness who disobeys summons
If, without sufficient excuse, a witness does not appear in obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him before the court at such time and place as shall be specified in the warrant.[14 of 2010]197. Warrant for witness in first instance
If the court is satisfied by evidence on oath that a person summoned as a witness under section 195 will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be specified in the warrant.[14 of 2010]198. Mode of dealing with witness arrested under warrant
When any witness is arrested under a warrant the court may, on his furnishing security by recognizance to the satisfaction of the court or of a police officer of the rank of Assistant Superintendent or above for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish such security, order him to be detained for production at such hearing.199. Power of court to order prisoner to be brought up for examination
200. Penalty for non-attendance of witness
201. Power to summon material witness present
202. Refractory witnesses
203. Power to take evidence in abscence of accused
204. Issue of commission for examination of witness within Malaŵi
Whenever in the course of any proceeding under this Code the High Court or a subordinate court is satisfied that the examination of a witness is necessary in the interests of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the High Court or subordinate court may issue a commission to any magistrate to take the evidence of such witness.[14 of 2020]205. Duties of magistrate to whom commission issued
The magistrate to whom the commission is issued shall proceed to the place where the witness is or shall summon the witness before him and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in the case of a trial.206. Parties to examine witness
207. Return of commission
After any commission issued under section 204 has been duly executed, it shall be returned, together with the deposition of the witness examined thereunder, to the court by which it was issued and the commission, the return thereto, and the deposition shall be open at all reasonable times to inspection of the parties, and may, subject to all just exceptions, be read in evidence in the case by either party, and shall form part of the record.208. Examination of witnesses outside Malaŵi
209. Adjournment of proceedings
Where a commission is issued under section 204 or an order is made under section 208, the proceedings may be adjourned for a specified time reasonably sufficient for the execution and return of the commission or of compliance with the order.210. Who may testify
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by immature or extreme old age, disease, whether of mind or body, or any cause of the same kind, subject however in the case of persons of immature age to section 6 of the Oaths, Affirmations and Declarations Act [Cap. 4:07], relating to the reception of their unsworn evidence.211. Dumb witnesses
A witness who is unable to speak may give his evidence in any manner in which he can make it intelligible, as by writing or by signs; but such writing must be written, and the signs made, in open court. Evidence so given shall be deemed to be oral evidence.[14 of 2010]212. Number of witnesses
Subject to this Code and any other law for the time being in force, no particular number of witnesses shall in any case be required for the proof of any fact.213. Order of examination of witnesses
The order in which witnesses are produced and examined shall be regulated by Parts VII to X inclusive and, subject thereto, by the discretion of the court.214. Examination, cross-examination and re-examination
215. Court to decide when questions shall be asked and when witness compelled to answer
216. Cross-examination of persons summoned to produce a document
A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.217. Leading questions
Any person suggesting the answer which the person putting it wishes or expects to receive is called a leading question.218. When leading questions may be asked
219. Evidence as to matters in writing and cross-examination as to previous writings
220. Communication during marriage
A husband shall not be compelled to disclose any communication made to him by his wife during their marriage and a wife shall not be compelled to disclose any communication made to her by her husband during their marriage.221. ***
[Repealed by 14 of 2010]222. ***
[Repealed by 14 of 2010]223. Judges, magistrates, police and revenue officers
224. Professional communications
225. Privilege not waived by volunteering evidence
If a party to any proceedings give evidence he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 224 and if any such party calls as a witness any such legal practitioner as is mentioned in section 224, he shall be deemed to have consented to such disclosure only if he questions such legal practitioner on matters which, but for such question, he would not be at liberty to disclose.[14 of 2010]226. Confidential communications with legal practitioner
No person shall be compelled to disclose to the court or to the jury any confidential communication, which has taken place between him and any legal practitioner advising or representing him unless he has offered himself as a witness or its giving evidence upon being required to do so under section 256 (1) or section 314 in which case he may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence which he has given and no other.[23 of 1968][14 of 2010]227. Production of documents another person having possession would refuse
No person shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last-mentioned person consents to their production.[14 of 2010]228. Witness not excused from answering question on ground that answer will incriminate
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue upon the ground that the answer to such question will incriminate, or may tend directly or indirectly to incriminate, such witness, or that it will expose such witness to a penalty or forfeiture of any kind, or that it may establish or tend to establish that he owed a debt or is otherwise subject to a civil suit:Provided that no such answer which a witness shall be compelled to give may subject him to any arrest or prosecution or be proved against him in any subsequent criminal proceeding, except a prosecution for giving false evidence by such answer.[14 of 2010]229. Exclusion of evidence to contradict answers to questions testing veracity
When a witness has been asked and has answered a question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict his answer; but, if he answers falsely, he may afterwards be charged with giving false evidence:Provided that—230. Question by party to his own witness if hostile
The court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.[14 of 2010]231. Impeaching credit of witness
232. Evidence tending to corroborate evidence of relevant fact admissible
233. Former statements of witness may be proved to show consistency of later testimony as to same fact
In order to show the consistency of the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.234. What matters may be proved in connexion with proved statement relevant under section 173 or 178
Whenever any statement, relevant under section 173 or 178 is proved, all matters may be proved either in order to contradict or to collaborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.235. Refreshing memory
236. Giving as evidence document called for and produced on notice
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing is requires him to do so.237. Using as evidence document production of which was refused on notice
When a party has refused to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court.238. Court’s power to put questions or order production
239. ***
[Repealed by 23 of 1968]240. No new trial for improper admission or rejection of evidence
The improper admission or rejection of evidence shall not be ground of itself for a new trial, or reversal of any decision in any case, if it shall appear to the court before such objection is raised that, independently of the evidence objected to and admitted, there evidence to justify the decision or that, if the rejected evidence had been received, it ought not to have varied the decision.241. Production of document
242. Accomplice
An accomplice shall be a competent witness against an accused person; and a conviction shall not be set aside merely because it proceeds upon the uncorroborated testimony of an accomplice:Provided that the court shall take recognizance of the fact that it is unsafe to convict an accused on the uncorroborated evidence of an accomplice, and shall weigh the evidence, and if it comes to the conclusion that the evidence of the accomplice, although uncorroborated, is true, it may be used as a basis of a conviction.[14 of 2010]243. What evidence is to be given when a statement forms part of a conversation, document, etc.
When any statement of which evidence is given forms part of a longer statement or of a conversation or of an isolated document, or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, book or series of letters or papers as the court considers necessary in that particular case to the full understanding of the nature and effect of the statement and the circumstances in which it was made.244. Corroboration in cases of sedition, perjury, etc.
245. Rules relating to documentary evidence
Part VII – Procedure in trials before subordinate courts
246. Summary trial procedure
247. Absence of complainant or prosecutor
248. Abscence of accused
249. Withdrawal of complaint
If a complaint, at any time before a final order is passed in any proceeding conducted by him after complaint made under section 83 (2), satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the same and shall thereupon acquit the accused.250. Adjournment
251. Plea of guilty
252. Plea of not guilty
If the accused does not admit the truth of the charge or does not plead, the court shall proceed to hear the case as hereinafter provided.[14 of 2010]252A. Rules relating to plea bargaining
253. Evidence for the prosecution
254. Procedure on close of case for prosecution
255. Case for the defence
256. Evidence for the defence
257. Evidence in reply
If the accused adduces evidence in his defence introducing new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecution to adduce evidence in reply to rebut the said matter.258. Addresses
259. The decision
260. Evidence for arriving at proper senternce
261. Prosecution time limits for trials in subordinate courts
261A. Rules relating to procedure in subordinate courts
The Chief Justice may make rules relating to trials before subordinate courts and such rules may provide for—Part VIII – Provisions relating to the committal of accused persons for trial before the High Court
262. Power to commit for trial
Any magistrate may commit any person for trial to the High Court.263. Court to hold preliminary inquiry
Whenever a charge has been brought against a person of an offence not triable by a subordinate court or as to which the subordinate court is of the opinion that it is not suitable to be disposed of upon summary trial, a preliminary enquiry shall be held according to the provisions hereinafter contained by a subordinate court:Provided that no such preliminary enquiry shall be held in any case where the certificate of the Director of Public Prosecutions is produced to a subordinate court in accordance with Part IX.264. Charge to be read to accused, etc.
At the commencement of a preliminary enquiry the magistrate shall read the charge to the accused but the accused shall not be required to make any reply thereto.265. Depositions
266. Variance between evidence and charge
267. Remand
268. Provisions as to taking statements or evidence of accused
269. Evidence and address in defence
270. Discharge of accused
271. Commitment for trial
If, at the close of the case for prosecution or hearing any evidence in defence, the court considers the evidence sufficient to put the accused on trial, the court shall commit him for trial to the High Court and shall, until the trial, either admit him to bail or send him to prison for safe-keeping. The warrant of such first-mentioned court shall be sufficient authority to the officer in charge of any prison appointed for the custody of prisoners committed for trial.[14 of 2010]272. Conflict of evidence
Where there is a conflict of evidence, the court shall consider the evidence to be sufficient to put the accused on his trial if the evidence against him is such as, if uncontradicted, would raise a probable presumption of his guilty, notwithstanding that it is contradicted in material points by evidence in favour of the accused, unless the court, for reasons to be recorded in the proceedings, shall see fit to deviate from this rule.273. Committal to next sessions
All persons committed for trial by a subordinate court shall be committed for trial at the next convenient sessions of the High Court.274. Summary adjudication
If, at the close of or during the inquiry, it shall appear to the subordinate court that the offence is of such a nature that it may suitably be dealt with under the powers possessed by the court, the court may, subject to Part VII, hear and finally determine the matter:Provided that in every such case the accused shall be entitled to have recalled for cross-examination all or any of the witnesses for the prosecution.275. Complainant and witnesses to be bound over
When the accused is committed for trial before the High Court, a subordinate court committing him shall bind by bond, with or without surety or sureties, as it may deem requisite, the complainant and every witness to appear at the trial to give evidence, and also to appear and give evidence, if required, at any further examination concerning the charge which may be held by direction of the Director of Public Prosecutions.276. Refusal to be bound over
If a person refuses to enter into a bond under section 275, the court may commit him to prison or into the custody of any officer of the court, there to remain until after the trial, unless in the meantime he enters into a bond; but if afterwards from want of sufficient evidence or other cause, the accused is discharged, the court shall order that the person imprisoned for so refusing be also discharged.[14 of 2010]277. Accused entitled to copy of depositions
278. Binding over of witnesses conditionally
279. Transmission of records to High Court and Director of Public Prosecutions
In the event of committal for trial the written charge (if any), the depositions, the statement of the accused, the bond of the accused, the complainant and the witness and any documents or things which have been put in evidence, shall be transmitted without delay by the committing court to the Registrar of the High Court, and an authenticated copy of the written charge, the depositions and the statement of the accused shall also without delay be transmitted to the Director of Public Prosecutions.[14 of 2010]280. Power of Director of Public Prosecutions to direct further investigation and to order further depositions
281. Return of depositions with a view to summary trial
282. Filing of a charge
283. Notice of trial
The Registrar or his deputy shall endorse on or annex to every charge filed under section 282, and to every copy thereof delivered to the officer of the court or police officer for service thereof, a notice of trial, which notice shall specify the particular sessions of the High Court at which the accused is to be tried on the said charge. Such notice shall be in the form set out in the Third Schedule or as near thereto as may be.284. Copy of charge and notice of trial to be served
285. Return of service
The officer serving the copy or copies of the charge and notice and notices of trial under section 284 shall forthwith make to the Registrar a return of the mode of service thereof.[14 of 2010]286. Postponement of trial before commencement
287. Directions as to service of notices
The High Court may give such directions for the service of any notices which the Court may deem necessary in consequence of any order made under section 286.[14 of 2010]Part IX – Summary committal procedure for trial of persons before the High Court
288. Interpretation
In this Part, unless the context otherwise requires—"Director of Public Prosecutions" means the person holding that office or a State Advocate acting under the direction of that person;"summary procedure case" means any case certified under section 289 as a proper case for trial before the High Court after summary committal procedure.289. Certifying of case as a summary procedure case
Notwithstanding anything contained in Part VIII, in any case where a person is charged with an offence, the Director of Public Prosecutions may issue a certificate in writing that the case is a proper one for trial by the High Court as a summary procedure case and such case shall, upon production to a subordinate court of such certificate, be dealt with by the subordinate court in accordance with this Part.290. No preliminary inquiry in summary procedure case
291. Record to be forwarded
Upon the committal of the accused for trial in a summary procedure case the record of the proceedings, including, in any case where a preliminary inquiry has been commenced, any depositions taken and any exhibits produced, shall be transmitted without delay by the committing court to the Registrar of the High Court and an authenticated copy of the record shall also be transmitted without delay to the Director of Public Prosecutions.[14 of 2010]292. Filing of a charge
293. Statement, etc., to be supplied to accused
In every summary procedure case the prosecution shall, not less than twenty-one clear days before the date fixed for the trial of the case, furnish to the accused or his legal practitioner, if any, and to the Registrar of the High Court a list of the persons whom it is intended to call as witnesses for the prosecution at the trial and a statement of the substance of the evidence of each witness which it is intended to adduce at the trial.[14 of 2010]Part X – Trials before the High Court
294. Trial before the High Court
295. Qualifications and liability to serve as a juror
Every person between the ages of twenty-one and sixty shall, subject to the exceptions contained in section 296, be qualified and liable to serve as a juror at any trial before the High Court.[20 of 1996]296. Exemptions from liability for jury service
The following persons are exempt from liability to serve as jurors, that is to say—297. Preparation of list of jurors
298. Summoning of the jurors
299. Excusing from attendance
The High Court may for reasonable cause excuse any person from attendance as a juror at any particular sessions, and may, if it shall think fit, at the conclusion of any trial, direct that jurors who have served at such trial shall not be summoned to serve again as jurors for a period not exceeding twelve months.300. Penalty for non-attendance
Every person summoned as a juror who, without lawful excuse, fails to attend as required by the summons, or who, having without having obtained the permission of the High Court, or who fails to attend after adjournment of the High Court after being ordered to attend, shall be guilty of an offence and liable to a fine of K20,000.[14 of 2010]301. Want of qualification ground for challenge but not for avoiding trial
If any person summoned as a juror is not qualified or liable to serve as a juror, or is exempt from service, such want of qualification or exemption shall be a good cause of challenge and the person so summoned shall be discharged on such challenge or on his own application if the High Court is satisfied as to the fact of such want and so directs; but no such want of qualification or exemption, if not submitted to the High Court before such person is sworn, shall afterwards be accepted as a ground for impeaching any verdict given by a jury upon which such person has served.302. When accused to be tried
302A. Prosecution time limits for trials in the High Court
303. Commencement of trial in the High Court: plea and directions hearing
304. Selection of jurors
305. Jurors to be sworn and foreman appointed
306. Duties of foreman
The foreman shall preside over any deliberation of the jury and ask any information from the High Court that is required by the jury or any of the jurors and shall announce the verdict of the jury.307. Court to inform the jury about the charge
The jury having been sworn, and a foreman having been elected or appointed, the jury shall be informed of the charge against the accused.308. Provision in case of death, illness, or non-attendance of juror
309. Keep jury together
310. Postponement of trial and the effect of order postponing trial or order for separate trial
311. The prosecution to open its case and examine witnesses
312. Recorded statement or evidence of accused may be put in as evidence
The statement or evidence of the accused recorded by the committing magistrate under section 268 may be put in by the prosecution and read as evidence.[14 of 2010]313. Close of case for the prosecution
314. The defence
315. Additional witnesses for the defence
The accused shall be allowed to examine any witness not previously bound over to give evidence at the trial, if such witness is in attendance, or if his attendance may be procured without unreasonable expense, delay or inconvenience, but he shall not be entitled as of right to have any witness summoned other than the witnesses whom he named to the subordinate court committing him for trial as witnesses whom he desired to be summoned.316. Evidence in reply
If the accused adduces evidence in his defence introducing new matter which the prosecution could not by the exercise of reasonable diligence have foreseen, the High Court may allow the prosecution to call evidence to rebut the said matter.[14 of 2010]317. Summing up by the accused or his legal practitioner and reply by prosecution
318. View by the High Court
During any trial and at any stage thereof prior to the close of the evidence, the High Court may adjourn for the purpose of inspecting any place, or anything which it is not possible or convenient to bring into court, the inspection of which may be material to the proper determination of the proceedings in question and, if the High Court sees fit, may permit evidence to be given at such place or in the vicinity of such thing.[14 of 2010]319. Summing up to jury
When, in a trial by a jury, the case on both sides is closed, the judge shall sum up the law and evidence in the case.[14 of 2010]320. Duties of judge in trials by a jury
321. Duty of jury
It is the duty of the jury to consider the evidence and, subject to any direction of the judge, return a true verdict.321A. Jury to consider evidence
321B. Effect of plea of guilty prior to verdict by jury
If at any time after the accused is given in charge but before the verdict of the jury has been finally communicated to the judge the accused pleads guilty to any charge against him the judge may convict him of such charge as if the accused had pleaded guilty thereto before he had been given in charge of the jury and the jury shall be discharged from giving its verdict thereon.[14 of 2010]321C. Verdict of majority of not less than eight to be verdict of jury
In the event of any of the jurors, after reasonable consultation, dissenting from the remainder, the verdict of a majority consisting of not fewer than eight jurors or, in any case to which section 308 applies, the verdict of the eight remaining jurors, shall be taken to be the verdict of the jury.[20 of 1996][14 of 2010]321D. Court may direct further consideration
If in any case it seems to him for any reason to be desirable, the judge may direct a jury to consider its verdict further.321E. How verdict to be given, etc.
321F. Failure of the jury to agree
321G. Judgment to be in accordance with verdict of jury
When the verdict of the jury is unanimous, or there is such a majority agreeing as may be taken as a verdict as herein before provided, the judge shall give judgment in accordance with that verdict.[14 of 2010]321H. Calling upon the accused before passing sentence
If the accused is convicted or if the accused pleads guilty, it shall be the duty of the judge before passing sentence to ask him whether he has anything to say why sentence should not be passed upon him according to law, but the omission so to ask him shall have no effect on the validity of the proceedings.[14 of 2010]321I. No stay, etc., of judgment for irregularity of certain grounds
No judgment shall be stayed or reversed on the ground of any objection based on alleged irregularity or defect which, if stated after the charge was read over to the accused, or during the trial, might have been cured by amending the charge, nor for any informality in swearing the jurors, witnesses or any of them.[14 of 2010]321J. Evidence in arriving at a proper sentence
321K. Rules relating to procedure in the High Court
The Chief Justice may make rules relating to trials in the High Court and such rules may provide for—Part XI – Consideration by High Court and subordinate courts of other offences admitted by the accused
322. Consideration of other offences admitted by accused
Part XII – Sentences and their execution
323. Sentence of death
When any person is sentenced to death, the sentence shall direct that he shall suffer death in the manner authorized by law.324. Accused to be informed of right to appeal
When an accused is sentenced to death, the court shall inform him that he has a right to appeal the period within which, if he wishes to appeal, his appeal should be preferred.[14 of 2010]325. Authority for detention
A certificate, in the prescribed form, signed by the Registrar that the sentence of death has been passed and naming the person so sentenced shall be sufficient authority for the detention of such person.[14 of 2010]326. Record and report to be sent to president
327. Procedure where a woman convicted of capital offence alleges she is pregnant
328. Sentence of death not to be passed on pregnant woman
Where a woman convicted of an offence punishable with death is found to be pregnant in accordance with section 327, the sentence to be passed on her shall be a sentence of imprisonment for life instead of sentence of death.329. Warrant in case of sentence of imprisonment
330. Recovery of fine, penalty, etc.
When a court orders money to be paid by an accused or by a prosecutor or complainant for fine, penalty, restitution, compensation, costs, expenses or otherwise, the money may be levied by seizure and sale of the movable or immovable property of the person ordered to pay as if it were money payable under a judgment and the Sheriffs Act [Cap. 3:05], with any necessary modifications, shall apply to such seizure and sale.331. Suspension of execution of sentence of imprisonment in default of fine
Where a convicted person has been sentenced to a fine only and to imprisonment in default of payment of a fine, and whether or not a warrant of seizure and sale has been issued under section 330, the court may suspend the execution of the sentence of imprisonment and may release the convicted person upon his executing a bond, with or without sureties, as the court thinks fit, conditioned for his appearance before such court on a day not being more than thirty days from the time of executing the bond.332. Order for payment of money on non-recovery of which imprisonment may be imposed
333. Commitment for want of seizure and sale
If the officer having the execution of a warrant of seizure and sale reports that he could find no property or not sufficient property whereon to levy the money mentioned in the warrant with expenses, the court may by the same or a subsequent warrant commit the person ordered to go to prison for a time specified in the warrant, unless the money and all expenses of the seizure and sale, commitment and conveyance to prison, to be specified in the warrant, are sooner paid.334. Payment in full after commitment
Any person committed to prison for non-payment may pay the sum mentioned in the warrant, with the amount of expenses therein authorized, if any, into court or to the person in whose custody he is, and that person shall thereupon discharge him if he is in custody for no other matter.[14 of 2010]335. Part payment after commitment
336. Who may issue warrant
Subject to section 326, 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 or by such other court exercising jurisdiction in the area concerned as may be specified by the Chief Justice by notice.[14 of 2010]337. Orders where punishment not appropriate, absolute or conditional discharge, probation, etc
338. Security for keeping the peace
339. Suspended sentence
340. Imprisonment of first offenders
341. Consequences of breach of conditions
342. Person twice convicted may be subjected to police supervision
343. Requirements from persons subject to police supervision
344. Failure to comply with requirements under section 343
345. Errors and omission in orders and warrants
The court may at any time amend any defect in substance or in form in any order or warrant, and no omission or error as to time and place, and no fact in form in any order or warrant given under this Code shall be held to render void or unlawful any act done or intended to be done by virtue of such order or warrant, provided that it is therein mentioned, or may be inferred therefrom, that it is founded on a conviction or judgment, and there is a valid conviction or judgment to sustain the same.Part XIII – Appeals and review
346. Appeal to High Court
347. Number of judges on appeal
348. ***
[Repealed by 14 of 2010]349. Limitation of appeals
350. Petition of appeal
351. Summary dismissal of appeal
352. Notice of time of place of hearing
Where an appeal has not been dismissed summarily under section 351, the High Court shall cause notice to be given to the parties of the time and place at which such appeal shall be heard, and shall furnish both parties with a copy of the proceedings and of the grounds of appeal.[14 of 2010]353. Powers of the High Court
354. Orders conformable to judgment or order
355. Stay of execution and admission to bail pending appeal
356. Additional evidence
357. Abatement of appeals
Every appeal from a subordinate court, except an appeal from a sentence of fine, shall finally abate on the death of the appellant.[14 of 2010]358. ***
[Repealed by 24 of 1968]359. Admission to bail pending appeal
The High Court may in its discretion in any case in which an appeal to the Supreme Court of Appeal is filed grant bail pending the hearing of an appeal.360. Power or High Court to call for records of review
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of reviewing the proceedings and satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.361. Power of Resident Magistrates to call for records of lower courts and to report to the High Court
362. Powers of the High Court on review
363. Discretion of Court as to hearing parties
Part XIV – Miscellaneous
364. Rules relating to duties of court officials, interpreters, etc.
364A. Rules relating to community service
365. Shorthand notes, and electronic recordings of proceedings
Shorthand notes may be taken, and electronic records be made, of the proceedings at the trial of any person before the High Court and a transcript of such notes or records shall be made if the court so directs, and such transcript may for all purposes be deemed to be the official record of the proceedings at such trial.[14 of 2010]366. Copies of proceedings
If any person affected by any judgment or order passed in any proceedings under this Code desires to have a copy of the judgment or order or any deposition or other part of the record, he shall on applying for such copy be furnished therewith upon payment of such fee as may be prescribed by the Chief Justice from time to time.[14 of 2010]367. Forms
The Chief Justice may by notice published in the Gazette prescribe the forms which are to be used for the purposes of this Code.368. Allowances to jurors, complainants and witnesses
Part XV – Savings and consequential amendments
369. Savings
This Code shall be in addition to and not in derogation of the Restriction and Security Orders Act [Cap. 14:03], the Preservation of Public Security Act [Cap. 14:02] and the Road Traffic Act [Cap. 69:01].370. ***
[Repealed by 14 of 2010]371. Application of Code to criminal proceedings in any traditional or local court
History of this document
31 December 2014 this version
Consolidation
01 February 1968
Commenced