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Prosecution and Inquiry

BOOK II
Prosecution and Inquiry
TITLE I
Setting in Motion Prosecution and Inquiry
Chapter 1 Setting justice in motion
Section 1 Accusation and complaint

Art. 11 __ Accusation in general.

(1)    Any person has the right to report any offence, whether or not he has witnessed the commission of the offence, with a view to criminal proceedings being instituted.
(2)    There shall be a duty to report in the cases provided in Art. 267,344 and 438 penal code.

Art. 12.___ Anonymous accusations.

Anonymous accusations which disclose serious beaches of the law and are on the face of them circumstantial and credible shall be investigated by the competent police authorities in the manner prescribed by Art. 22 et seq. with a view to ascertaining the truth or otherwise of the accusation.

Art. 13__ Offences punishable on complaint.

In the case of offences which under the law may be prosecuted and punished only upon a formal complaint by the injured party or those deriving rights from him, the provisions of Art. 217-222 and 721 Penal Code shall apply.

Art. 14 __ form of accusation or complaint.

(1)    Any accusation (Art. 11) or complaint ( Art. 13) shall be reduced to writing by the person to whom it is mad and when completed shall be read over to the complainant who shall sign and date it.
(2)    Where an accusation or complaint is made by more than one person ( Art.219 Penal Cade), all such persons shall sign it.

Art. 15 __ Accusation or complaint against an unknown offender.

Where the offender cannot be identified because he is unknown to the person making the accusation or complaint, such person shall furnish such details as are known to him with a view to establishing the identity of the offender.

Art. 16 __ Authority competent for receiving accusation or complaint.

(1)    Any accusation (Art. 11) or complaint(Art. 13) may be made to the police or the public prosecutor. An accusation or complaint regarding a young person shall be made in accordance with Art. 172.
(2)    Where it is made to the public prosecutor, the prosecutor shall forward it to the competent police officer with a view to an investigation being made under Art. 22 et seq.

Art. 17. __ Accusation or complaint addressed to wrong authority.

Where an accusation or complaint is made to a person or authority other than the police or the public prosecutor or to a police authority or a prosecutor having no jurisdiction, such person, authority or prosecutor shall without delay forward the accusation or complaint to the appropriate police authority or public prosecutor.

Art. 18.__ False accusation or Complaint.

Whosoever makes a false accusation or false complaint shall be liable to the punishments laid down in art. 441 and 580 Penal Code.

                  Section 2__ Setting justice in motion in flagrant cases

Art. 19.__ Flagrant offences.

(1)    An offence shall be deemed to be flagrant where the offender is found committing the offence, attempting to commit the offence or has just committed the offence,
(2)    An offence shall be deemed to be quasi-flagrant when, after it has been committed, the offender who has escaped is chased by witnesses or by members of the public or when a hue and cry has been raised.

Art. 20. __ Assimilated cases.

An offence shall be deemed to be flagrant and to fall under the provisions of Art. 19 when:
(a)    The police are immediately called to the place where the offence has been committed: or
(b)    A cry for help has been raised from the place where the offence is being or has been committed.

Art. 21__ Effect as regards setting in motion of proceedings or arrest.

(1)    In the case of offences as defined in Art. 19 and 20 proceedings may be instituted without an accusation or complaint being lodged, unless the offence cannot be prosecuted except upon a formal complaint.
(2)    An arrest without warrant may in such cases be made on the conditions laid down in Art. 49 et seq.

                 Chapter 2 Police Investigation

Art. 22 Principle.

(1)    Whenever the police know or suspect that an offence has been committed, they shall proceed to investigate in accordance with the provisions of this Chapter.
(2)    Investigation into offences committed by young persons shall be carried out in accordance with instructions given by the court under Art. 172 (2) .

Art. 23. __ Duty of police to investigate.

Investigating police officers shall carry out their duties under this Chapter not withstanding that they are of opinion that the accusation, complaint or information they may have received is open to doubt.

Art. 24. __ recording of statement.

After having recorded an accusation or complaint in the manner laid down in Art. 14, the investigating police officer shall elicit from  the person making the accusation or complaint all relevant facts and dates, the name or description of the offender, the names and addresses of principal witnesses and all other evidence which may be available and shall record them.

Art.25.___ Summoning of accused or suspected person.

Where the investigating police officer has reason to believe that a person has committed an offence, he may be written summons require such person to appear before him.

Art 26. __ Arrest

(1)    Where the accused or the suspect has not been arrested and the offence is such as to justify arrest or where  the person summoned under Art. 25 fails to appear, the investigating police officer shall take such steps as are necessary to effect his arrest.
(2)    Where the arrest cannot be made without warrant, the investigating police officer shall apply to the court for a warrant of arrest in accordance with the provisions of Art. 53.

Art. 27.__ Interrogation.

(1)    Any person summoned under Art. 25 or arrested under Art. 26,50 or 51 shall, after his identity and address have been established. Be asked to answer the accusation or complaint made against him.
(2)    He shall not be compelled to answer and shall be informed that he has the right not to answer and that any statement he may make may be used in evidence.
(3)    Any statement which may be made shall be recorded.
(4)    Where the arrested person is unable properly to understand the language in which his answers are to be recorded, he shall be supplied with a competent interpreter, who shall certify the correctness of all questions and answers.

Art. 28. __ Release on bond.

(1)    Where the offence committed or complained of is not punishable with rigorous imprisonment as a sole or alternative punishment; or where it is doubtful that an offence has been committed or that the summoned or arrested person has committed the offence complained of, the investigating police officer may in his discretion release such person on his executing a bond with or without sureties that he will appear at such place, on such day and at such time as may be fixed by the police.
(2)    Where the accused is not released on bond under this article, he may apply to the court to be released on bail in accordance with the provisions of Art. 64.

Art. 29__ Procedure after arrest

(1)    Where the accused has been arrested by the police or a private person and handed over to the police (Art. 58) the police shall bring him before the nearest court within forty eight hours of his arrest or so soon thereafter as local circumstances and communications permit. The time taken in the journey to the court shall not be included.
(2)    The court before which the accused is brought may make any order it thinks fit in accordance with the provisions of Art. 59.

Art. 30__ Examination of witnesses by the police.

(1)    The investigating police officer may, where necessary, summon and examine any person likely to give information on any matter relating to the offence or the offender.
(2)    Any person so examined shall be bound to answer truthfully all questions put to him. He may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge.
(3)    Any statement which may be made shall be recorded.

Art. 31.___ No inducement to be offered.

(1)    No police officer or person in authority shall offer or use or make or cause to be offered, made or used any inducement, threat, promise or any other improper method to any person examined by the police.
(2)    No police officer or other person shall prevent or discourage by whatever means any person from making or from requiring to be recorded in the course of the police investigation any statement relating to such investigation which he may be disposed to make of his own free will.

Art. 32. __ Searches and seizures.

Any investigation police officer or member of the police may make searches or seizures in accordance with the provisions which follow;
(1)    No arrested person shall be searched except where it is reasonably suspected that he has about his person any articles which may be material as evidence in respect of the offence with which he is accused or in suspected to have committed. A search shall be made by a person of the same sex as the arrested person.
(2)    No premises may be searched unless the  police officer or member of the police is in possession of a search warrant in the form prescribed in the third schedule to this code except where;
(a)    An offender is followed in hot pursuit and enters premises or  disposes of articles the subject matter of an offence in premises;
(b)    Information is given to an investigating police officer or member of the police that there is reasonable cause for suspecting that articles which may be material as evidence in respect of an offence in respect of which an accusation or complaint had been made under art. Of this Code and the offence is punishable with more than three years imprisonment, are concealed or lodged in any place and he has good grounds for believing that by reason of the delay in obtaining a search warrant such articles are likely to be removed.

Art.   33.__ Issue of search warrant.

(1)    A search warrant may be issued by any court. No search warrant  shall be issued unless the court is satisfied that the purposes of justice or of any inquiry, trial or other proceedings under this code will be served by the issue of such warrant.
(2)    Every search warrant issued shall specify the property to be searched for and seized and no investigating police officer or member of the police may seize any property other than that specified in such warrant.
(3)    On seizing any property such investigating police officer or member of the police shall make a list of the property seized and where possible shall have the list checked and signed by an independent person. Any property seized which is required for the trial shall be preserved in a safe place until handed over to the court as an exhibit. Any property not so required may be returned to the person from whom it was taken and a receipt shall be taken
(4)    In effecting a search the investigating police officer or member of the police may use such force as is necessary and may where access to premises is denied use reasonable force to affect entry.
(5)    Unless otherwise expressly ordered by the court, searches shall be carried out only between the hours of 6 A.M. and 6 P.M.

Art. 34.__ Physical examination

(1)    Notwithstanding the provisions of Art. 20 Civil Code where an investigating police officer considers it necessary, having regard to the offence with which the accused is charged, that a physical examination of the accused should be made, he may require a registered medical practitioner to make such examination and require him to record in writing the results of such examination. Examination under this Article shall include the taking of a blood test.
(2)    An investigating police officer may, with the agreement of the victim of an offence or, where he is incapable with the consent of the parent or guardian, require a registered medical practitioner to make such physical examination as the offence being inquired into would appear to require. He shall require the registered medical practitioner to record in writing the results of such examination.

Art.35. Power of court to record statements and confessions

(1)    Any court may record any statement or confession made to it at any time before the opening of a preliminary inquiry or trial.
(2)    No court shall record any such statement or confession unless, upon questioning the person making it, it ascertains that such person voluntarily makes such statement or confession. A note to this effect shall be made on the record.
(3)    Such statement or confession shall be recorded in writing and in full by the court and shall thereafter be read over to the person making the statement or confession, which shall sign and date it. The statement shall then be signed by the president of the court.
(4)    A copy of the record shall then be sent to the court before which the case is to be inquired into or tried, and to the public prosecutor.

Art. 36 __ Diary of investigation

(1)    Every police officer making a police investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forth:
(a)    The day on which he started and closed his investigation and
(b)    All the steps taken in the course of the investigation; and
(c)    The circumstances which the investigation disclosed; and
(d)    All the means of evidence which may have been collected.
(2)    He shall enter in the diary any order which he may have received from a court or the public prosecutor in the course of the investigation.

Art. 37 Repot of police investigation.

(1)    Every police investigation under this Chapter shall be completed without unnecessary delay.
(2)    As soon as the investigation is completed, the investigation police officer shall forward to the public prosecutor a report setting forth;
(a)    The name of the parties; and
(b)    The nature of the information and the names of all persons who appear to be acquainted with the circumstances of the case; and
(c)    All the means of evidence which have been collected.
(3)    The report shall specify all the steps which may have been taken with a view to preservation or otherwise.

Art. 38. – Action by public prosecutor on receiving report.

On receiving the report under Art. 37 the public prosecutor may:
A)    Prosecute the accused on a charge drawn up by him under Art.109-122; or
B)    Order that a preliminary inquiry be held under Art.80-93;or
C)    Order further investigations; or
D)    Refuse to institute proceedings under Art. 42

Art. 39. Closure of police investigation file

(1)    The public prosecutor shall close the police investigation file where the accused:
(a)    Has died ;or
(b)    Is under nine years of age or
(c)    Cannot be prosecuted under any special law or under public international  law (diplomatic immunity)
(2)    The provisions of art. 43-45 shall not apply where the case file is closed under this article.
(3)    On closing the case file. The public prosecutor shall send a copy of his decision to the Advocate General. The private complainant, if any and the investigating police officer.

Chapter 3. Institution of Proceedings

Art. 40 Duty to institute proceedings

(1)    Subject to the provisions of Art. 42 the public prosecutor shall institute proceedings accordance with the provisions of this Chapter whenever he is of opinion that there are sufficient grounds for prosecution the accused.
(2)    The public prosecutor shall not institute proceedings against a young person unless instructed so to do by the court under Art. 172.

Art. 41 Doubtful cases.

Where it is not clear whether proceedings should be instituted, the public prosecutor shall refer the matter for instructions to the Advocate General.

Art 42. Cases where proceedings shall not be instituted

(1)    No proceedings shall be instituted where:
(a)    The public prosecutor is of opinion that there is not sufficient evidence to justify a conviction; or
(b)    There is no possibility of finding the accused and the case is one which may not be tried in his absence; or
(c)    The prosecution is barred by limitation or the offence is made the subject of a pardon or amnesty: or
(d)    The public prosecutor is instructed not to institute proceedings in the public interest by the Minister by order under his hand.
(2)    On no other grounds may the public prosecutor refuse to institute proceedings.
(3)    The public prosecutor shall institute proceedings in cases affecting the Government when so instructed by the Minister.

Art. 44 Effect of refusal.

(1)    Where the public prosecutor refuses to institute proceedings under Art. 42 (1)(a) in relation to an offence punishable on complaint only, he shall authorize in writing the appropriate person mentioned in Art.47 to conduct a private prosecution. A copy of such authorization shall be sent to the court having jurisdiction.
(2)    Where the public prosecutor refuses to institute proceedings under Art. 42 (1) (a) in relation to an offence which is not punishable on complaint only, the appropriate person mentioned in art, 47 may, within thirty days from having received the decision of the public prosecutor apply for an order that the public prosecutor institute proceedings.

Art. 45 form of and decision an application

(1)    An application under Art. 44(2) shall be made to the court to which an appeal lies from decisions of the court which would have had jurisdiction, had proceedings been instituted.
(2)    The court shall, after considering the refusal of the public prosecutor to institute proceedings under Art.42(1) and the reasons therefor either confirm the decision of the public prosecutor or order him to institute proceedings ;

Art. 46 Liability of private prosecutor.

The private prosecutor authorized to conduct a private prosecution under art. 44(1) shall conduct the private prosecution at his peril and at his own expense.

Art. 47 Persons entitled to conduct private prosecutions.

    No person other than:
(a)    The injured party or his legal representative; or
(b)    The husband or wife on behalf of the spouse; or
(c)    The legal representative of an incapable person; or
(d)    The attorney or a body corporate;
May conduct a private prosecution.

Art. 48 Stay of proceedings in private prosecution pending institution of proceedings by public prosecutor.

Where the evidence in  a private prosecution discloses that a more serious offence has resulted than has been charged in a private prosecution, the public prosecutor may apply to the court to stay the proceedings pending the institution of fresh proceedings by the public prosecutor and the court shall thereon stay the proceedings

TITLE II
Steps to be taken pending Investigation
Chapter I.- Arrest
Section 1.  – Arrest without warrant

Art. 49 Principle.

Save as is otherwise expressly provided, no person may be arrested unless a warrant is issued and no person may be detained in custody except on an order by the court. An arrest without warrant may only be made on the conditions laid down in this section.

Art. 50 Arrest without warrant in flagrant cases.

Any private person or member of the police may arrest without warrant a person who has committed a flagrant offence as defined in Art. 19 and 20 of this Code, where the offence is punishable with simple imprisonment for not less than three months.

Art. 51 Arrest without warrant by the police

(1)     Any member of the police may arrest without warrant any person:
(a)    Whom he reasonably suspects of having committed or being about to commit an offence punishable with imprisonment for not less than one year;
(b)    Who is in the act of committing a breach of the peace;
(c)    Who obstructs a member of the police while in the execution of his duties or who has escaped or attempted to escape from lawful custody;
(d)    Who has evaded or is reasonably suspected of having evaded police supervision;
(e)    Who is reasonably suspected of being a deserter from the armed forces or the police forces;
(f)    Who has in his possession without lawful excuse housebreaking implements or weapons;
(g)    Who has in his possession without lawful excuse anything which may reasonably be suspected of being stolen or otherwise obtained by the commission of an offence;
(h)    Who may reasonably be suspected of being a dangerous vagrant within the meaning of Art. 471 Penal Code.
(2)    Nothing in this Article shall affect the power of other government officers to make an arrest without warrant under special provisions of other laws.

               Section 2. – Warrant of arrest

Art 52 Principle.

(1)    Where a warrant is required by law to be issued by a court before a person is arrested the provisions which follow shall apply.
(2)    A warrant of arrest shall be in the form prescribed in the Third Schedule to this Code
(3)    A warrant of arrest shall remain in force until executed or cancelled by the court which issued it notwithstanding the death, retirement or replacement of the judge having issued the warrant.

Art. 53 issue of warrant.

(1)    A warrant of arrest may be issued on the application of any investigating police officer by any court and shall be addressed to the chief of the police in the Taklay Guezat in which it is issued.
(2)    A warrant may be issued at any time and on any day of the year
(3)    A warrant of arrest may be executed in any part of the Empire by any member of the police.

Art. 54. When warrant of arrest to be issued.

A warrant of arrest shall only be issued where the attendance of a person before the court is absolutely necessary and cannot otherwise be obtained.

Art. 55 Application for warrant in urgent cases.

(1)    In cases of urgency the investigating police officer may apply for a warrant by telephone or telegraph.
(2)    In such cases the application to the court in question shall be confirmed in writing within 24 hours.

               Section 3.   – General provisions

Art 56. Arrest how made

(1)    The police officer making an arrest shall first establish the identity of the person to be arrested.
(2)     Where the arrest is made with a warrant, the police officer shall read out the warrant to the person to be arrested and shall show it to the person arrested if he so requests.
(3)    He shall then actually touch or confine the body of the person to be arrested unless there be a submission to his custody by word or action.
(4)    If such person forcibly resists the endeavors to arrest or attempts to evade the arrest, such officer may use all means proportionate to the circumstances to effect the arrest.
(5)    The provisions of this article shall also apply to bench warrants.

Art. 57 Assistance may be required to effect arrest.

Where the police call for assistance in making an arrest with or without warrant there shall be a duty to assist where assistance can be given without risk (Art. 761 Penal Code)

Art 58. Handing over of arrested person.

(1)    Where an arrest is made the person making the arrest shall without unnecessary delay hand over the person so arrested to the nearest police station.
(2)    Where the person making the arrest has witnessed the commission of the offence, he, shall make a statement in accordance with the provisions of Art 30.

Art. 59.  – Detention

(1)    The court before which the arrested person is brought(Art. 29) shall decide whether such person shall be kept in custody or be released on bail.
(2)    Where the police investigation is not completed the investigating police officer may apply for a remand for a sufficient time to enable the investigation to be completed.
(3)    A remand, may be granted in writing. No remand shall be granted for more than fourteen days on each occasion.

Chapter 2 Remand

Art. 60 Conditions of remand.

    Any arrested person shall be detained on the conditions prescribed by the law relating to prisons.

Art. 61.- Detained persons right to consult advocate.

Any person detained on arrestor on remand shall be permitted forthwith to call and interview his advocate and shall, if he so requests, be provided with the means to write.

Art 62. – Finding of sureties.

Any person on remand who may be released on bail shall be given the opportunity to find sureties.

Chapter 3 Ball
Section 1 Bail Bond

Art 63. Principle

(1)    Whosoever has been arrested may be released on bail where the offence with  which he is charged does not carry the death penalty or rigorous imprisonment for fifteen years or more and where there is no possibility of the person in respect of whom the offence was committed dying.
(2)    No person shall be released on bail unless he has entered into a bail bond, with or without sureties, which, in the opinion of the court, is sufficient to secure his attendance at the court when so required to appear.
(3)    Nothing in this Article shall affect the provisions of Art. 67.

CRIMINAL PROCEDURE CODE

Art.64.–Application for bail.

(1)    A person under arrest may at any time apply for bail.
(2)    The application shall be made in writing and signed by the applicant. It shall contain a summary of the reasons for making the application and the nature of the bail bond the applicant is prepared to enter into.
(3)    An application for bail may be granted by any court.

Art.65. — Court may direct by endorsement on warrant security to be taken.

(1)    Any court issuing a warrant for the arrest of any person may, in its discretion, direct by endorsement on the warrant that if such person enters into a bail bond on the terms laid down by the court, the police officer to whom the warrant is directed by the court shall take such security and shall release such person from custody.
(2)    The endorsement shall state:
(a)    The amount to be guaranteed and the guarantors. If any; and
(b)    The time at which the person released is to attend before the court.
(3)    Where a bail bond is entered into as required under this Article, the police officer to whom the warrant is directed shall release the arrested person and forward the bond to the court.

Art.66. — Decision on application for bail.

    Any court to which an application for bail is made shall consider it without delay and shall call upon the prosecutor or the investigation police officer in his absence for comments and recommendations. It shall make its decision within 48 hours.

Art.67. — Bail not allowed

    An application for bail shall not be allowed where:
(1)    the applicant is of such nature that it is unlikely that he will comply with the conditions laid down in the bail bond;
(2)    The applicant, if set at liberty, is likely to commit other offences;
(3)    The applicant is likely to interfere with witnesses or tamper with the evidence.

Art.68 — Bail allowed.

    Where the application is allowed, the court shall fix the conditions on which bail is granted.

Art.69.– Amount to be secured.

(1)    The choice of the guarantors and the amount to be guaranteed shall be in the discretion of the court.
(2)    The court shall decide such matter having regard to:
(a)    the seriousness of the charge: and
(b)    the likelihood of the accuser’s appearance: and
(c)    the danger to public order which his release mad occasion: and
(d)    The resources of the accused and his guarantors.
(3)    Any decision granting or refusing the application shall be in writing and shall give reasons.

Art.70.—Obligations of guarantors.

(1)    Unless otherwise expressly provided in the bail bond the guarantor shall be responsible for securing the appearance of the person released on bail at any time and place to which during the course of the proceedings the hearing may from time to be adjourned.
(2)    Nothing herein contained shall affect the provisions Art. 77 and 78.
(3)    Where the guarantor of a bail bond dies, his guarantee shall lapse. Any recognizance which has been deposited shall be returned to the guarantor’s personal representative. The person released on bail may be required to produce new sureties.

Art.71.—Duration of bail bond.

(1)    The bail bond shall be in the form prescribed in Third Schedule to this Code.
(2)    The bail bond shall remain in force for such period as shall be fixed by the court but may be extended from time to time by the court.
(3)    Where the charge against the person released on bail is withdrawn the court shall discharge the bail bond.

Art.72.—Release.

When the bail bond has been entered into and all formalities complied with, the accused shall be released from custody.

Art.73.—Mistake or fraud.

(1)    If through mistake, fraud or otherwise, insufficient sureties have been accepted the court may issue a warrant for the arrest of the person released on bail and when such person appears, the court may order him to find sufficient sureties.
(2)    Where he refuses or is unable to do so, the court shall order that he be remanded.

Art.74.—New facts.

Where certain facts are disclosed which were unknown when bail was granted, the court may at any time of its own motion or on application reconsider the conditions on which bail has been granted and may order the released person to produce new, sureties or to be remanded.

Art.75.—Application to court of appeal where bail refused.

(1)    Where bail has been refused by a court, the accused may apply in writing within twenty days against such refusal to the court having appellate jurisdiction under Art. 182(1) to grant bail. The application shall set forth concisely the reasons why bail should be granted .
(2)    The court of appeal after considering the application shall dismiss the application or grant bail on such conditions as it shall fix. No appeal shall lie against a decision given by the court of appeal under this Article.

                 Section 2. Effect bail bond

Art.76.—Failhire to appear.

(1)    Where the person released on bail fails to appear on the date fixed a warrant for his arrest shall be issued .
(2)    The guarantors shall be summoned and required to show cause why their recognisances should not be estreated.
(3)    The court shall make such order regarding the bond as the circumstances of the case may require.

Art.77.—Released person likely to abscond.

(1)    Where the guarantors are of opinion that the accused may abscond, they shall inform the court and may apply to the court to be released from their obligations.
(2)    The court shall issue a warrant of arrest and when the accused has been arrested the court shall release the guarantors.

Art.78.—Discharge of sureties.

(1)    The guarantors may at any time bring the released person to the court which released him and thereupon they shall be discharged.
(2)    All or any of the guarantors may at any time apply to the court which caused the bond to be taken to discharge the bail bond either wholly or so far as relates to the applicant. On such application the court shall issue a warrant for the arrest of the person on whose behalf the bail bond was executed and upon his appearance shall discharge the bond either wholly or so far relates the applicant.
(3)    In the case provided in sub-art (1) and (2), the court shall require the accused to find other sufficient sureties and, if he is unable or refuses to do so, shall order his remand.

Art.79.—Forfeiture of recognisances.

(1)    Whenever the accused fails to comply with a condition in a bail bond, the bail bond shall be forfeited unless the accused or his guarantors can show cause why the bond shall not be forfeited.