ARRANGEMENT OF SECTIONS
1. Short title
2. Procedure for offences
Criminal Jurisdiction of Courts
4. Jurisdiction of High Court
5. Jurisdiction of magistrates' courts
6. The High Court and magistrates' courts
Prosecution at the Public Instance
A. DIRECTOR OF PUBLIC PROSECUTIONS
7. Director of Public Prosecutions vested with right of prosecuting all offences
8. Prosecution by Director of Public Prosecutions in person or by appointed substitute
9. Presiding officer may appoint prosecutor in certain cases
10. Attorney-General's power of stopping prosecutions
11. Power of ordering liberation of persons committed for further examination, sentence or trial
12. Neither acquittal nor conviction a bar to civil action for damages
B. LOCAL PUBLIC PROSECUTOR
13. Powers and duties of local public prosecutor
14. Private prosecution on refusal of Director of Public Prosecutions to prosecute
15. What other persons entitled to prosecute
16. Private prosecutions by certain public bodies and persons
17. Private prosecutor may apply to court for warrant
18. Certificate of Director of Public Prosecutions that he declines to prosecute
19. Recognizances to be entered into by private prosecutor
20. Failure of private prosecutor to appear on appointed day
21. Mode of conducting private prosecutions
22. Competency of Director of Public Prosecutions to take up and conduct prosecution at the public instance in all cases
23. Deposit of money by private prosecutor
24. Costs of private prosecutions
25. Disposal of fines in certain private prosecutions
Prescription of Offences
26. Prosecution for murder not barred by lapse of time, for other offence barred by lapse of 20 years
A. WITHOUT WARRANT
27. Arrest and verbal order to arrest for offences committed in the presence of judicial officers
28. Arrest by peace officer for offences committed in his presence and on reasonable grounds of suspicion as to certain offences
29. When peace officer may arrest without warrant
30. Failure to give particulars of name and address to a peace officer constitutes an offence
31. Arrest by private person for certain offences committed in his presence
32. Arrest by private person in case of an affray
33. Owners of property may arrest in certain cases
34. Arrest by private persons for certain offences on reasonable suspicion
35. Arrest of persons offering stolen property for sale, etc.
36. Procedure after arrest without warrant
B. WITH WARRANT
37. Warrant of apprehension by judicial officer or justice
38. Endorsement of warrants
39. Execution of warrants
40. Telegram stating issue of warrant authority for execution of the same
41. Arresting wrong person
42. Irregular warrant or process
43. Tenor of warrant
44. Assistance by private persons called on by officers of the law
45. Breaking open doors after failure in obtaining admission for the purpose of arrest or search
46. Arrest: how made, and search thereon of person arrested
47. Resisting arrest
48. Power to retake on escape
49. Saving of other powers of arrest
50. Saving of civil rights
Search Warrants, Seizure and Detention of Property
Connected with Offences and Custody of Women Unlawfully Detained
for Immoral Purposes
51. Search warrants
52. Search by police without warrant
53. Search for stolen stock or produce, liquor or habit-forming drugs
54. Judicial officer may order seizure of books or documents in possession of any person
55. Seizure of counterfeit coin, etc.
56. Seizure of vehicle or receptacle used in connection with certain offences
57. General powers of police to seize or take property affording evidence as to commission of offence
58. Disposal of property seized
59. Weapons seized under search warrants
60. Persons who may hold preparatory examinations
61. Summons to appear at preparatory examination
62. Contents of summons
63. Commencement of preparatory examination
64. Irregularities not to affect the proceedings
65. Clerk of the court to subpoena witness
66. Arrest and punishment for failure to obey subpoena or to remain in attendance
67. Tender of witness's expenses not necessary
68. Witness refusing to be examined or to produce document may be committed
69. Procedure where trial in magistrate's court has been turned into a preparatory examination
70. Evidence on oath at preparatory examination
71. Recognizance of witness to appear at trial
72. Absconding witness may be arrested
73. Witness refusing to enter into recognizance
74. Provisions as to taking statement or evidence of accused person
75. Evidence and address in defence
76. Saving as to further evidence and admissions
77. Discharge of accused person
78. Committal for trial
79. Binding over of witnesses conditionally
80. Admission of previous convictions by accused at conclusion of preparatory examination
81. Powers of Director of Public Prosecutions on discharge of accused
82. Committal of accused for trial
83. Proceedings on admission of guilt
84. Committal by magistrate where offence committed outside district
85. Removal of accused from gaol of one district to that of another
86. Committal for further examination
87. When offence committed on the boundaries of districts or on a journey
88. Districts in which preparatory examination may be held
89. Discretionary powers of the magistrate
90. Bail before conclusion of examination in magistrate's discretion
91. Prosecutor or magistrate conducting preparatory examination to make local inspection and to cause post mortem and other examinations to be made
92. All articles to be used in evidence on the trial to be labelled for identification and to be kept in safe custody
93. Records of preparatory examination to be sent to the Director of Public Prosecutions
94. Powers of Director of Public Prosecutions
95. How remitted cases to be dealt with
96. Indictment by the Director of Public Prosecutions in certain cases
98. Persons committed for trial or sentence entitled to receive copy of depositions of witnesses
99. Persons under trial may inspect depositions without charge at trial
100. Record of evidence in absence of accused
101. Duty of magistrate to take depositions as to alleged offence in cases where the actual offender not known or suspected
102. Access to accused by friends and legal advisers
103. True copy of warrant of commitment to be furnished to prisoners under a penalty of P100
A. AFTER PREPARATORY EXAMINATION IS CONCLUDED
104. Bailable offences
105. Verbal application for bail
106. Application for bail after commitment
107. Magistrate to determine whether the offence is bailable
108. Refusal of bail from the uncertain issue of act committed
109. Conditions of recognizances
110. On failure of accused to appear at trial, recognizance to be forfeited
B. IN CASES TRIED BY MAGISTRATES' COURTS
111. Power to admit to bail, nature of bail and provision in case of default
C. GENERAL FOR ALL CRIMINAL CASES
112. Excessive bail not to be required
113. Appeal to High Court against refusal of bail
114. Power of the High Court to admit bail
115. Insufficiency of sureties
116. Release of sureties
117. Render in court
118. Sureties not discharged until sentence or discharge of the accused
119. Death of surety
120. Person released on bail may be arrested if about to abscond
121. Deposit instead of recognizance
122. Remission of bail
Indictments and Summonses
A. INDICTMENT IN THE HIGH COURT
123. Charge in the High Court to be laid in an indictment
124. When the case is pending
B. SUMMONSES AND CHARGES IN MAGISTRATES' COURTS
125. Lodging of charges in a magistrate's court
126. Summons in magistrate's court
127. Charges in remitted cases
C. INDICTMENTS AND SUMMONSES
128. Offence to be specified in indictment or summons with necessary particulars
129. Joinder of counts in an indictment or summons
130. Joinder of two or more accused in one indictment or summons
131. Rules for the framing of indictments or summonses
132. Amendment of Third Schedule
Procedure before Commencement of Trial
A. IN THE HIGH COURT
133. Persons committed to be brought to trial within reasonable time
134. Change of place of trial
135. Such prisoners not brought to trial at second session after commitment entitled to discharge from imprisonment
B. IN MAGISTRATES' COURTS
136. Commencement of proceedings if accused is in custody
C. GENERAL FOR ALL COURTS
137. Persons brought before wrong court
138. Trial of pending case may be postponed
139. Adjournment of trial
140. Powers of court on postponement or adjournment
141. Accused to plead to the indictment or summons
142. Effect of plea
143. Objections to indictment, etc. how and when to be made
145. Proceedings if defence be an alibi
146. Court may order delivery of particulars
147. Motion to quash indictment, etc.
148. Notice of motion to quash indictment, etc. and of certain pleas to be given
149. Certain discrepancies between indictment, etc. and evidence may be corrected
151. Truth of defamatory matter to be specially pleaded
152. Person committed or remitted for sentence
153. Accused refusing to plead
154. Statement of accused sufficient plea of former conviction or acquittal
155. Trial on plea to the jurisdiction
156. Issues raised by plea to be tried
Procedure in Case of the Insanity or Other Incapacity of
an Accused Person
157. Interpretation in Part XII
158. Inquiry by court as to lunacy of accused
159. Defence of lunacy at preparatory examination
160. Defence of lunacy at trial
161. Resumption of examination or trial
162. Certificate of medical practitioner as to sanity to be admissible in evidence
163. Procedure when accused does not understand proceedings
164. Inquiry in absence of accused
165. Transfers from place of safe custody
166. Notification of confinement and transfer
167. Inquiry into continued confinement
168. Appointment of curator bonis of person confined
169. Reports on persons confined
170. Cessation of mental disorder, etc., of criminal lunatic
171. False statements
172. Ill-treatment of persons confined
173. Conniving at escape of person confined
174. Employment of male persons in custody of females
Procedure after Commencement of Trial
A. IN THE HIGH COURT AND MAGISTRATES' COURTS
176. Separate trials
177. Defence by counsel, etc.
178. Presence of accused
179. No information of trial of certain offences to be published
180. Conduct of trial
181. Summing up by counsel, etc.
183. Validity of judgment
184. Judgment as valid as if indictment, etc., had been originally correct
B. IN CASES REMITTED TO A MAGISTRATES' COURT
185. Remittal on confession of the accused
186. Remittal otherwise than on confession of accused
C. VERDICTS POSSIBLE ON PARTICULAR INDICTMENT OR SUMMONS
187. When offence proved is included in offence charged
188. Persons charged with any offence may be convicted of attempt
189. Charges of certain offences respecting infant and unborn children, and abortion, etc.
190. Charge of manslaughter in connection with driving of motor vehicle
191. Charge of administering oaths
192. Charge of rape
193. Charge of defilement of a girl under 16 years of age
194. Charge of burglary, etc.
195. Charge of stealing
196. Charge of obtaining by false pretences
197. Construction of sections 187 to 196
Witnesses and Evidence in Criminal Proceedings
A. SECURING THE ATTENDANCE OF WITNESSES
198. Process for securing the attendance of witnesses
199. Service of subpoenas
200. Duty of witness to remain in attendance
201. Subpoenaing of witnesses or examination of persons in attendance by the court
202. Powers of court in case of default of witness in attending or giving evidence
203. Requiring witness to enter into recognizance
204. Absconding witness
205. Committal of witness who refuses to enter into recognizance
206. Compelling witness to attend and give evidence
207. Witnesses from prison
208. Service of subpoena to secure the attendance of a witness residing in Botswana outside jurisdiction of court
209. Payment of expenses of witnesses
B. EVIDENCE ON COMMISSION
210. Taking evidence on commission
211. Parties may examine witnesses
212. Return of commission
213. Adjournment of inquiry or trial
C. COMPETENCY OF WITNESS
214. No person to be excluded from giving evidence except under this Act
215. Court to decide questions of competency of witnesses
216. Incompetency from insanity or intoxication
217. Evidence for prosecution by husband or wife of accused
218. Evidence of accused and husband or wife on behalf of accused
D. OATHS AND AFFIRMATIONS
219. Evidence to be on oath
220. Affirmations in lieu of oaths
221. When unsworn or unaffirmed testimony admissible
E. ADMISSIBILITY OF EVIDENCE
222. Proof of certain facts by affidavit
223. Reports by medical and veterinary practitioners
224. Inadmissibility of irrelevant evidence
225. Hearsay evidence
226. Admissibility of dying declaration
227. Admissibility of depositions at preparatory examination of witness since deceased or kept away by the contrivance of the accused
228. Admissibility of confessions by accused if freely and voluntarily made without undue influence and, if judicial, after due caution
229. Admissibility of facts discovered by means of inadmissible confession
230. Confession not admissible against others
231. Admissibility of confessions and other statements made before magistrate or justice
232. Evidence of character: when admissible
233. Evidence of genuineness of disputed writings
234. Certified copy of record of criminal proceedings sufficient without production of record
235. Gazette evidence in certain cases
236. Appointment to a public office
F. EVIDENCE OF ACCOMPLICES
237. Freedom from liability to prosecution of accomplices giving evidence
238. Evidence of accomplice not to be used against him if he should thereafter be tried for the offence
G. SUFFICIENCY OF EVIDENCE
239. Sufficiency of one witness in criminal cases, except perjury and treason
240. Conviction on single evidence of accomplice
241. Conviction of accused on plea of guilty or evidence of confession
242. Admission in writing before trial of minor offence
243. Sufficiency of proof of appointment to a public office
H. DOCUMENTARY EVIDENCE
244. Certified copies or extracts of documents admissible
245. Production of official documents
246. Copies of official documents sufficient
I. SPECIAL PROVISIONS AS TO BANKERS' BOOKS
247. Entries in bankers' books admissible in evidence in certain cases
248. Examined copies also admissible after due notice
249. Bank not compelled to produce any books unless ordered by court or magistrate
250. Inspection of bankers' books by police
251. Sections 247, 248 and 249 not to apply to proceedings to which bank is a party
J. PRIVILEGES OF WITNESSES
252. Privileges of accused persons when giving evidence
253. Privilege arising out of the marital state
254. No witness compellable to answer question which the witness's husband or wife might decline
255. Witness not excused from answering questions by reason that the answer would establish a civil claim against him
256. Privilege of professional advisers
257. Privilege from disclosure of facts on the grounds of public policy
258. Witness excused from answering questions the answers to which would expose him to penalties, or degrade his character
K. SPECIAL RULES OF EVIDENCE IN PARTICULAR CRIMINAL CASES
259. Evidence on charge of treason
260. Evidence on a charge of bigamy
261. Evidence of relationship on charge of incest
262. Evidence as to counterfeit coin
263. Evidence of gambling house
264. Evidence on charge of receiving
265. Evidence of previous conviction on charge of receiving
266. Evidence of counterfeit coin
267. Evidence on trial for defamation
268. Evidence on charge of stealing against clerk or servant
269. Evidence on charges relating to seals and stamps
L. MISCELLANEOUS MATTERS RELATING TO EVIDENCE IN CRIMINAL PROCEEDINGS
270. Impounding documents
271. Unstamped instruments admissible in criminal cases
272. Onus of proof in prosecutions under laws imposing licences, etc.
274. Impeachment and support of witness's credibility
275. Onus of proof in prosecutions under taxation laws
276. Cases not provided for by this Part
277. Saving as to special provisions in any other law
Discharge of Accused Persons
278. Dismissal of charge in default of prosecution
279. Liberation of accused persons
280. General gaol delivery and returns
281. Discharge from imprisonment or expiration of recognizance no bar to trial
282. Accused not brought to trial not obliged to find further bail
283. Previous conviction not to be charged in indictment, etc.
284. Previous conviction not to be proved, etc. except in certain circumstances
285. Tendering admission of previous conviction after accused has pleaded guilty, or been found guilty
286. Notice that proof of former conviction will be offered
287. Mode of proof of previous conviction
288. Finger-print records to be prima facie evidence of previous conviction
Judgment on Criminal Trial
289. Withdrawing charges
290. Mode of delivering judgment
291. Contents of judgment
292. Arrest of judgment
293. Decision may be reserved
294. Sentence in the High Court
295. Commital to High Court for sentence after conviction in a magistrate's court
296. Procedure on commital for sentence under section 295
297. Provisions applicable to sentences in all courts
298. Sentence of death upon a woman who is pregnant
299. Manner of carrying out death sentences
300. Cumulative or concurrent sentences
301. Conviction of other charges pending
302. Imprisonment in default of payment of fines
303. Recovery of fine
304. Manner of dealing with convicted juveniles
305. Corporal punishment
306. Recognizances to keep the peace and to be of good behaviour
307. Payment of fine without appearance in court
308. Powers as to postponement and suspension of sentences
309. Commencement of sentences
310. Payment of fines by instalments
311. Consequences of failure to comply with conditions of postponement or suspension of sentence
312. Further postponement or deferment of sentence
313. Magistrates' courts not to impose sentences of less than four days
314. Discharge with caution or reprimand
Costs, Compensation and Restitution
316. Court may order accused to pay compensation
317. Compensation to innocent purchaser of stolen property
318. Restitution of stolen property
319. Return of exhibits, etc.
320. Miscellaneous provisions as to awards or orders under this Part
321. Reconciliation in criminal cases
322. When execution of sentence may be suspended
323. Summary dismissal of appeal
324. Notice of time, place and hearing
325. Powers of appellate court
326. Order of court to be certified
Pardon and Commutation
327. Conditional remission of sentence by the President
General and Supplementary
328. How documents are to be served
329. Person making a statement in a criminal case entitled to copy
330. Mode of proving service of process
331. Transmission of summonses, writs, etc. by telegraph
332. Liability to punishment in case of offences by corporate bodies, partnerships, etc.
333. Provisions as to offences under two or more enactments
334. Estimating age of person
335. Binding over of persons to keep the peace
336. Power of the Director of Public Prosecutions to invoke Court of Appeal's decision on point of law
337. Finger-prints and other marks
First Schedule - Offences under the Penal Code
Second Schedule - Offences on Conviction whereof the Offender Cannot be Dealt with under Section 308
Third Schedule - Forms of Stating Offences in Indictments and Summonses
Proc. 52, 1938,
Proc. 13, 1944,
Proc. 18, 1945,
Proc. 49, 1947,
Cap. 13, 1948,
Proc. 5, 1956,
Proc. 40, 1956,
Proc. 36, 1957,
Proc. 44, 1958,
Cap. 18, 1959,
Proc. 46, 1959,
Proc. 41, 1961,
Law 12, 1963,
HMC Order 1, 1963,
Law 3, 1964,
Law 22, 1964,
Law 33, 1964,
L.N. 55, 1965,
L.N. 84, 1966,
L.N. 94, 1966,
Act 9, 1968,
Act 35, 1970,
Act 64, 1970,
Act 16, 1971,
Act 42, 1971,
Act 41, 1972,
Act 30, 1973,
Act 11, 1974,
Act 20, 1974,
Act 11, 1975,
Act 12, 1976,
Act 18, 1977,
Act 22, 1978,
Act 17, 1979,
Act 41, 1980,
Act 8, 1981,
Act 21, 1982,
Act 25, 1983,
Act 16, 1986,
Act 7, 1997,
Act 14, 2005,
Act 2, 2014,
S.I. 74, 2014.
An Act to make provision with respect to procedure and evidence in criminal cases, and to provide for other matters incidental to such procedure and evidence.
[Date of Commencement: 1st January, 1939]
Preliminary (ss 1-3)
This Act may be cited as the Criminal Procedure and Evidence Act.
All offences under the Penal Code and, subject to the provisions of any enactment, all other offences shall be enquired into, tried and otherwise dealt with according to this Act.
In this Act, unless the context otherwise requires-
"company" means a company incorporated or registered under the Companies Act or under any other enactment;
"counsel" includes an attorney in proceedings before the High Court in which such attorney has the right of audience;
"court" or "the court", in relation to any matter dealt with under a particular provision of this Act, means the judicial authority which under this Act or any other law has jurisdiction in respect of that matter;
"day" or "day-time" means the interval between half-past six o'clock in the morning and half-past six o'clock in the evening;
"district", in relation to the area of jurisdiction of any magistrate's court, means a district prescribed under the Magistrates' Courts Act;
"judicial officer" means a judge or magistrate;
"justice" means a justice of the peace appointed or exercising functions as such under any law;
"juvenile" means any person under the apparent age of 18 years;
"local authority" includes a tribal administration;
"magistrate" means any person appointed as a magistrate under the Constitution or the Magistrates' Courts Act:
Provided that for the purposes of Part VIII "magistrate" has the meaning assigned to it in section 60;
"money" includes bank notes, currency notes, bank drafts, cheques and any other orders, warrants or requests for the payment of money;
"night" or "night time" means the interval between half-past six o'clock in the evening and half-past six o'clock in the morning;
"offence" is an act, attempt or omission punishable by law;
"peace officer" includes any magistrate or justice; a sheriff or a deputy sheriff; any officer, non-commissioned officer, constable or trooper of a police force established under any law or of any body of persons carrying out any law under the powers, duties and functions of a police force in Botswana; a gaoler or a warder of any gaol, and any Chief, Sub-Chief or Headman recognized or appointed as such in terms of the Bogosi Act;
"person" and "owner" and other like terms when used with reference to property includes corporations of all kinds and any other association of persons capable of owning property, and also when so used includes the State and any local authority;
"policeman" includes any commissioned officer, non-commissioned officer, constable or trooper of a police force established under any law or of any body of persons carrying out under any law the powers, duties and functions of a police force in Botswana; and "police" has a corresponding meaning;
"premises" includes any land, any building or any other place, and any vehicle, conveyance or vessel;
"prescribed" means prescribed under this Act or under any regulations or rules of court lawfully made thereunder;
"property" includes any description of movable or immovable property, money, debts and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and also includes not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise;
"public prosecutor" includes any person delegated generally or specially by the Director of Public Prosecutions under this Act;
"rules of court" means rules in force under the High Court Act or the Magistrates' Courts Act, as the case may be;
"summons" includes charge;
"telegraph" includes transmission by radio telegraphy or radio telephone;
"valuable security" includes any document which is the property or in the lawful possession of any person and which is evidence of the ownership of any property or of the right to recover or receive any property;
"vessel" means an aircraft, a ship, boat or similar craft.
Criminal Jurisdiction of Courts (ss 4-6)
The High Court as constituted by the Constitution of Botswana shall have jurisdiction in respect of the trial of all persons charged on indictment with committing any offence within Botswana.
Magistrates' courts shall, subject to the provisions of this Act, have jurisdiction in all cases of offences committed within their several areas of jurisdiction, such jurisdiction being as prescribed in the laws relating to the jurisdiction of such courts.
(1) The superior court is the High Court.
(2) For the purposes of this Act the magistrates' courts are the courts described in section 3 of the Magistrates' Courts Act.
Prosecution at the Public Instance (ss 7-13)
A. DIRECTOR OF PUBLIC PROSECUTIONS (ss 7-12)
The Director of Public Prosecutions is vested with the right and entrusted with the duty of prosecuting in the name and on behalf of the State in respect of any offence committed in Botswana.
The Director of Public Prosecutions may appear personally or by any person delegated by him at any preparatory examination held under Part VIII or to conduct any prosecution before any court.
If through any cause whatsoever the person so appointed to conduct a prosecution or to appear at any preparatory examination is unable to act or if no person has been appointed, the officer presiding over such court or examination may, by writing under his hand, designate some fit and proper person for that occasion to prosecute or (as the case may be) to appear:
Provided that where no fit and proper person is available, the presiding officer may, in his discretion, proceed with the trial of any case or the hearing of any examination in the absence of a prosecutor.
The Director of Public Prosecutions may, at any time before conviction, stop any prosecution commenced by him or by any other person charged with the prosecution of criminal cases.
The Director of Public Prosecutions may order the liberation of any person committed to prison for further examination, sentence, or trial. For that liberation a writing setting forth that the Director of Public Prosecutions sees no ground for prosecuting such person and subscribed by him shall be a sufficient warrant.
Neither a conviction nor an acquittal following on any prosecution is a bar to civil action for damages at the instance of any person who may have suffered any injury from the commission of an alleged offence.
B. LOCAL PUBLIC PROSECUTOR (s 13)
(1) All public prosecutors in any magistrate's court are, as representatives of the Director of Public Prosecutions and subject to his instructions, charged with the duty of prosecuting in that court, in the name and on behalf of the State all offences which that court has jurisdiction to try.
(2) Criminal proceedings instituted in any magistrate's court by any public prosecutor may be continued by any other public prosecutor.
(3) Whenever there is lodged with or made before a local public prosecutor a sworn declaration in writing by any person disclosing that any other person has committed an offence chargeable in the magistrate's court to which such public prosecutor is attached, he shall determine whether there are good grounds or not:
(i) he may refer to the Director of Public Prosecutions the question whether he shall prosecute or not; and
(ii) any other person may be specially authorized by the Director of Public Prosecutions to prosecute in the matter.
Private Prosecutions (ss 14-25)
In all cases where the Director of Public Prosecutions declines to prosecute for an alleged offence, any private party who can show some substantial and peculiar interest in the issue of the trial, arising out of some injury which he individually has suffered by the commission of the offence, may prosecute in any court competent to try the offence, the person alleged to have committed it.
(1) The following persons also possess the right of prosecution under section 14 as private parties-
(a) a husband in respect of offences committed against his wife;
(b) the legal guardians or curators of minors or lunatics in respect of offences committed against their wards;
(c) the wife or children or, where there is no wife or child, any of the next of kin of any deceased person in respect of any offence by which the death of such person is alleged to have been caused.
(2) All such persons as are described in this section or section 14 are hereinafter referred to as private prosecutors.
(1) Any public body or any person on whom the right to prosecute in respect of any offence is expressly conferred by law, may prosecute in any court competent to try the offence, the person alleged to have committed it.
(2) The right is hereby conferred on city councils, town councils, district councils and township authorities to prosecute in respect of offences against their bye-laws.
Whenever any private prosecutor desires to prosecute for any offence any person for whose liberation from prison any warrant has been issued by the Director of Public Prosecutions, such private prosecutor may apply to the court within whose jurisdiction the offence is alleged to have been committed, for a warrant for the further detention or, if he is on bail, for the detention of such person, and such court shall make such order as to it seems right under the circumstances.
It shall not be competent for any private party referred to in section 15 to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorized by law to issue such process a certificate signed by the Director of Public Prosecutions that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance; and in every case in which the Director of Public Prosecutions declines to prosecute he shall, at the request of the party intending to prosecute, grant the certificate aforesaid.
No private party referred to in section 15 shall take any proceedings under the right conferred upon him by this Part until he-
(a) has, if the prosecution is in the High Court, deposited the sum of P100 or entered into a recognizance in the sum of P100 with two sufficient sureties in the sum of P50 each (to be approved by the court in which the proceedings are to be instituted) as security that he will prosecute the charge against the accused to a conclusion without delay; and
(b) has in any prosecution given security in such amount and in such manner as the court may direct that he will pay the accused such costs incurred by him in respect of his defence to the charge, as the court before which the case is tried may order him to pay.
(1) If a private prosecutor does not appear on the day appointed for appearance, the charge or complaint shall be dismissed unless the court sees reason to believe that such prosecutor was prevented from being present by circumstances beyond his control, in which case it may adjourn the hearing of the case.
(2) In the case of any such dismissal as aforesaid, the accused shall not be again liable to prosecution, on the same charge, by any private prosecutor; but no such dismissal shall prevent the Director of Public Prosecutions, or a public prosecutor on the instructions of the Director of Public Prosecutions, from afterwards instituting a prosecution.
(1) A private prosecution shall, subject to the provisions of this Act, be proceeded with in the same manner as if it were being conducted at the public instance, except that all costs and expenses of the prosecution shall be paid by the party prosecuting, subject to any order that the court may make when the prosecution is finally concluded.
(2) A private prosecution in a magistrate's court may be initiated and conducted on behalf of-
(a) a city or town council, by the city or town clerk, treasurer or any person (including a police officer) authorized by the city or town clerk in writing;
(b) a district council, by the district council secretary, treasurer or any person (including a police officer) authorized by the district council secretary in writing;
(c) a township authority, by any member of the township authority or a person (including a police officer) authorized by the township authority in writing.
In the case of prosecution at the instance of a private prosecutor, the Director of Public Prosecutions or the local public prosecutor may apply by motion to any court before which the prosecution is pending to stop all further proceedings in the case, in order that the prosecution for the offence may be instituted or continued at the public instance and such court shall in every such case make an order in terms of the motion.
In the case of a criminal prosecution at the instance of a private prosecutor, the registrar or clerk of the court shall, for the service of any summons or subpoena or execution of any warrant of arrest or other process, demand and receive the prescribed fees.
(1) Where a person prosecuted at the instance of a private prosecutor is acquitted, the court in which the prosecution was brought may order the prosecutor to pay to the person prosecuted the whole or any part of the expenses (including the costs both before and after committal) which may have been occasioned to him by the prosecution.
(2) Where the court, upon hearing the charge or complaint on a private prosecution, pronounces the same unfounded and vexatious, it shall award to the accused on his request such costs as it may think fit.
Whenever in any proceedings initiated in pursuance of section 16(2) a fine is imposed, such fine shall be paid into the court which imposed the fine, and of any amount of such fine which may be recovered such court shall pay half into the general revenues of the Republic and half into the general fund of the prosecuting council or authority.
Prescription of Offences (s 26)
The right of prosecution for murder shall not be barred by any lapse of time; but the right of prosecution for any other offence, whether at the public instance or at the instance of a private party, shall, unless some other period is expressly provided by law, be barred by the lapse of 20 years from the time when the offence was committed.
Arrests (ss 27-50)
A. WITHOUT WARRANT (ss 27-36)
(1) It shall be lawful for any judicial officer who has knowledge of any offence by seeing it committed, himself to arrest the offender or by a verbal order to authorize other persons to do so.
(2) The persons so authorized are empowered and required to follow the offender if he flee, and to execute such order on him out of the presence of such judicial officer.
Every peace officer and every other officer empowered by law to execute criminal warrants is hereby authorized to arrest without warrant-
(a) every person who commits any offence in his presence;
(b) every person whom he has reasonable grounds to suspect of having committed-
(i) any of the offences specified in the Penal Code, other than the offences specified in such Code and the other enactments as are set out in Part II of the First Schedule to this Act;
(ii) any offence, other than an offence specified in the Penal Code, the punishment for which may be a period of imprisonment exceeding six months, without the option of a fine;
(iii) any offence, other than an offence specified in the Penal Code, where the law constituting that offence provides that such arrest may be made,
(c) every person whom he finds attempting to commit an offence, or clearly manifesting an intention to do so.
(1) Any peace officer may, without any order or warrant, arrest-
(a) any person having in his possession any implement of house-breaking, and not being able to account satisfactorily for such possession;
(b) any person in whose possession anything is found which it is reasonably suspected is stolen property or property unlawfully obtained, and who is reasonably suspected of having committed an offence with respect to such thing;
(c) any person who obstructs a policeman or other peace officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
(d) any person reasonably suspected of being a deserter from the Botswana Police Force;
(e) any person being or loitering in any place by night under such circumstances as to afford reasonable grounds for believing that he has committed or is about to commit an offence;
(f) any person reasonably suspected of committing or having committed an offence under any law governing the making, supplying, possession or conveyance of intoxicating liquor or of habit-forming drugs or the possession or disposal of arms and ammunition;
(g) any person reasonably suspected of being a prohibited immigrant in Botswana for the purpose of any law regulating entry into or residence in Botswana;
(h) any person reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law for preventing the theft of stock or produce.
(2) Whenever it is provided in any law that the arrest of any person may be made by a police officer or constable or other official without warrant, subject to conditions or to the existence of circumstances specified in that law, an arrest by any peace officer, without warrant or order, may be made of such person subject to those conditions or the existence of those circumstances.
(1) A peace officer may call upon-
(a) any person whom he has power to arrest;
(b) any person reasonably suspected of having committed an offence; and
(c) any person who may, in his opinion, be able to give evidence in regard to the commission or suspected commission of any offence,
to furnish such peace officer with his full name and address.
(2) If any person fails on such demand to furnish his full name and address, the peace officer making the demand may forthwith arrest him; and if any such person on such demand furnishes to such peace officer a name or address which such peace officer upon reasonable grounds suspects to be false, such person may be arrested and detained for a period not exceeding 24 hours until the name and address so furnished have been verified.
(3) Any person who, when called upon under the provisions of subsection (1) or (2) to furnish his name and address, fails to do so or furnishes a false or incorrect name or address shall be guilty of an offence and liable to a fine not exceeding P60 or, in the discretion of the court, to imprisonment without the option of a fine for a term not exceeding three months.
(1) Every private person, in whose presence anyone commits or attempts to commit an offence mentioned in subparagraphs (i), (ii) and (iii) of paragraph (b) of section 28 or who has knowledge that any such offence has been recently committed, is authorized to arrest without warrant or forthwith to pursue the offender; every other private person to whom the purpose of the pursuit has been made known is authorized to join and assist therein.
(2) Every person is hereby authorized to arrest without warrant any other person whom he believes on reasonable grounds to have committed an offence and to be escaping therefrom, and to be freshly pursued by one whom such private person believes on reasonable grounds to have authority to arrest the escaping person for that offence.
Every private person is authorized to arrest without warrant any person whom he sees engaged in an affray in order to prevent such person from continuing the affray, and to deliver him over to the police authorities to be dealt with according to law.
The owner of any property on or in respect to which any person is found committing an offence, or any person authorized by such owner, may arrest without warrant the person so found.
Any private person may without warrant, arrest any other person upon reasonable suspicion that such other person has committed any of the offences mentioned in subparagraphs (i), (ii) and (iii) of paragraph (b) of section 28.
Where anyone may, without warrant, arrest another for committing an offence, he may also arrest without warrant any person who offers to sell, pawn or deliver to him any property which, on reasonable grounds, he believes to have been acquired by such person by means of any such offence.
(1) No person arrested without warrant shall be detained in custody for a longer period than in all the circumstances of the case is reasonable; and such period shall not (subject to the provisions of subsection (2)) unless a warrant has been obtained for the further detention upon a charge of an offence, exceed 48 hours, exclusive of the time necessary for the journey from the place of arrest to the magistrate's court having jurisdiction in the matter.
(2) Unless such person is released by reason that no charge is to be brought against him, he shall, as soon as possible, be brought before a magistrate's court having jurisdiction upon a charge of an offence.
(3) Nothing in this section shall be construed as modifying the provisions of Part IX or of any other law whereby a person under detention may be released on bail.
(4) Whenever a person effects an arrest without warrant, he shall forthwith inform the arrested person of the cause of the arrest.
B. WITH WARRANT (ss 37-43)
(1) Any judicial officer or justice may issue a warrant for the arrest of any person or for the further detention of a person arrested without a warrant on a written application subscribed by the Director of Public Prosecutions or by the local public prosecutor or any commissioned officer of police setting forth the offence alleged to have been committed and that, from information taken upon oath, there are reasonable grounds of suspicion against the person, or upon the information to the like effect of any person made on oath before the judicial officer issuing the warrant:
Provided that it shall not be lawful for any judicial officer or justice to issue any such warrant except when the offence charged has been committed within his area of jurisdiction, or except when the person against whom the warrant is issued was, at the time when it was issued, known, or suspected on reasonable grounds, to be within the area of jurisdiction of the judicial officer or justice.
(2) Every such warrant may be issued on a Sunday as on any other day and shall remain in force until it is cancelled by the person who issued it, or until it is executed.
(3) When a warrant has been issued for the arrest of a person who is being detained by virtue of an arrest without a warrant, such warrant of arrest shall have the effect of a warrant for his further detention.
Every judicial officer and every justice, on production to him of a warrant or summons or other process relating to any criminal matter issued by any other judicial officer or justice shall grant his concurrence to it by an endorsement thereof. Thereafter the warrant, summons or other process may be executed within the area of jurisdiction of the judicial officer or justice so endorsing it:
Provided that, whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the judicial officer or justice within the area of whose jurisdiction the warrant, summons or other process is to be executed, will prevent its execution, the officer of the law to whom it is directed may execute it, without such endorsement, in any place beyond such area of jurisdiction.
(1) Every peace officer is hereby authorized and required to obey and execute any warrant issued by a judge of the High Court under this Act.
(2) Every peace officer is hereby authorized and required to obey and execute any warrant issued or endorsed by a judicial officer or any justice of the district in which such officer has been appointed to act.
(3) Every warrant issued by any judicial officer or justice shall have effect and, when endorsed as provided in section 38 (if such endorsement is necessary), may lawfully be executed anywhere within Botswana by any peace officer.
(4) A peace officer or other person arresting any person by virtue of a warrant under this Act shall, upon demand of the person arrested, produce the warrant to him, notify the substance thereof, and permit him to read it.
(5) A person arrested by virtue of a warrant under this Act shall, as soon as possible, be brought to a police station or charge office, unless any other place is specially mentioned in the warrant as the place to which such person shall be brought, and he shall thereafter be brought as soon as possible before a magistrate's court upon a charge of the offence mentioned in the warrant.
(1) A telegram from any officer of any court or from any peace officer, stating that a warrant has been issued for the apprehension or arrest of any person accused of any offence, shall be a sufficient authority to any peace officer for the arrest and detention of such person until a sufficient time, not exceeding 14 days, has elapsed to allow the transmission of the warrant or writ to the place where such person has been arrested or detained unless the discharge of such person be previously ordered by a judicial officer:
Provided that any such judicial officer may, upon cause shown, order the further detention of any such person for a period to be stated in such order, but not exceeding 28 days from the date of arrest of such person.
(2) Nothing in this section shall be construed as derogating from the provisions of this Act or of any other law whereby a person so arrested may be admitted to bail.
(1) Any person duly authorized to execute a warrant of arrest, who thereupon arrests a person believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from responsibility to the same extent and subject to the same provisions as if the person arrested had been the person named in the warrant.
(2) Any person called on to assist the person making such arrest and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant was issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.
Any person acting under a warrant or process which is bad in law on account of a defect in substance or in form apparent on the face of it, shall, if he in good faith and without culpable ignorance and negligence believes that the warrant or process is good in law, be protected from responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law, and ignorance of the law shall in such case be an excuse:
Provided that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.
Every warrant issued under this Act shall be to apprehend the person described therein and to bring him before a judicial officer as soon as possible upon a charge of an offence mentioned in the warrant.
C. GENERAL (ss 44-50)
Every male inhabitant of Botswana between the ages of 16 and 60 is, when called upon by any policeman, authorized and required to assist such policeman in making any arrest which by law such policeman is authorized to make, of any person charged with or suspected of the commission of any offence, or to assist such policeman in retaining the custody of any person so arrested. Any such inhabitant who, without sufficient excuse, refuses or fails when called upon to do so shall be guilty of an offence and liable to a fine not exceeding P40 or, in the discretion of the court, to imprisonment without the option of a fine for a term not exceeding one month.
It shall be lawful for any peace officer or private person who by law is authorized or required to arrest any person known or suspected to have committed any offence, to break open for that purpose the doors and windows of, and to enter and search, any premises in which the person whose arrest is required is known or suspected to be:
Provided that such officer or private person aforesaid shall not act under this section unless he has previously failed to obtain admission after having audibly demanded the same and notified the purpose for which he seeks to enter such premises.
(1) In making an arrest the peace officer or other person authorized to arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action.
(2) A peace officer or other person arresting any person under the provisions of this Part may search such person and shall place in safe custody all articles (other than necessary wearing apparel) found on him.
(3) Whenever a woman is searched on her arrest, the search shall only be made by a woman and shall be made with strict regard to decency. If there is no woman available for such search who is a police officer or is a prison officer, the search may be made by any woman specially named for the purpose by a peace officer.
(1) Where a peace officer or other person authorized to arrest a person (such latter person being hereinafter in this section referred to as "the offender") endeavours to make such arrest, and the offender forcibly resists the endeavours to arrest him, or attempts to evade the arrest, such peace officer or other person may use all means necessary to effect the arrest.
(2) Nothing contained in this section shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.
If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him or cause him to be pursued and arrested in any place in Botswana.
Nothing contained in this Part shall be construed as taking away or diminishing any authority specially conferred by any other law to arrest, detain, or put any restraint on, any person.
Nothing contained in this Part shall, except as is otherwise expressly provided, be construed as taking away or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.
Search Warrants, Seizure and Detention of Property Connected with Offences and Custody of Women Unlawfully Detained for Immoral Purposes (ss 51-59)
(1) If it appears to a judicial officer on complaint made on oath that there are reasonable grounds for suspecting that there is upon any person or upon or at any premises or other place or upon or in any vehicle or receptacle of whatever nature within his jurisdiction-
(a) stolen property or anything with respect to which any offence has been, or is suspected on reasonable grounds to have been, committed;
(b) anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence; or
(c) anything as to which there are reasonable grounds for believing that it is intended to be used for the purpose of committing any offence,
he may issue his warrant directing a policeman or policemen named therein or all policemen to search any person, premises, other place, vehicle, or receptacle, and any person found in or upon such premises, other place, or vehicle, and to seize any such thing if found, and to take it before a judicial officer to be dealt with according to law.
(2) Any such warrant shall be executed by day unless the judicial officer by the warrant specially authorizes it to be executed by night, in which case it may be so executed; and in the searching of any woman the provisions of subsection (3) of section 46 shall mutatis mutandis apply. Such warrant may be issued and executed on Sunday as on any other day.
(1) If a policeman of the rank of Sergeant or above such rank believes on reasonable grounds that the delay in obtaining a search warrant would defeat the object of the search he may himself search any person, premises, other place, vehicle or receptacle of whatever nature, and any person found in or upon such premises, other place or vehicle, for any such thing mentioned in section 51 and may seize such thing if found and take it before a judicial officer:
Provided that in the searching of any woman the provisions of subsection (3) of section 46 shall mutatis mutandis apply.
(2) Such search must, as far as possible be made in the day time and in the presence of two or more respectable inhabitants of the locality in which the search is made.
(3) It shall be lawful for any policeman of or above the rank of Sub-Inspector, and any policeman having a special written authority from a judicial officer or policeman of or above the rank of Sub-Inspector, to enter and inspect, without warrant, any drinking bar, common gaming house or other place of resort of loose and disorderly persons.
(1) If any policeman of the rank of Sergeant, or above such rank, has reason to suspect that any stolen stock or produce (as defined in any law dealing with the theft of stock or produce) is upon any premises or at any place, or that any substance has been placed upon any premises or at any place or is in the custody or possession of any person upon any premises or at any place, in contravention of a provision of any law relating to intoxicating liquor or habit-forming drugs, he may at any time enter upon and search such premises or place and search any person thereupon or thereat, or grant written authority to any person applying therefor to make such entry and search. Any person in lawful occupation of any land shall in respect of any premises or place upon that land be entitled to exercise the powers conferred by this subsection upon a policeman as aforesaid.
(2) Any person who, under colour of this section, wrongfully and maliciously or without probable cause applies for, obtains, or acts upon any such written authority, or wrongfully and maliciously or without probable cause exercises the powers of search conferred by this section, shall be guilty of an offence and liable to a fine not exceeding P100 or, in default of payment, to imprisonment for a term not exceeding three months. Such person shall also be liable to pay to the person lawfully in occupation of the premises or place when the same was searched such sum by way of damages, not exceeding P200 as any competent court may award.
(3) Nothing contained in subsection (2) shall be construed as depriving any aggrieved person of the right to elect to take any other remedy allowed by law in lieu of the remedy under that subsection.
(1) If it appears from information on oath that any person is in possession of any book of account or document or any other thing whatsoever which is necessarily required in evidence in any criminal proceedings, any judicial officer presiding at such proceedings may issue an order directing the officer to whom such order is addressed to take possession of such book or document or thing and hand it over to such person as may be named in such order, and thereupon such officer may lawfully execute such order.
(2) Any person who resists or hinders, or aids, incites or encourages any other person to resist or hinder, such officer in executing the order shall be guilty of an offence and liable to a fine not exceeding P200, or in default of payment, to imprisonment for a term not exceeding 12 months.
(1) If any person finds in any place whatever or in the possession of any person without lawful authority or excuse-
(a) any counterfeit coin or any forged bank-note or bank-note paper;
(b) any tool, instrument, or machine, adapted and intended for making any such counterfeit coin or forged bank-note or bank-note paper;
(c) any filings or clippings of gold or silver or any gold or silver in bullion, dust, solution or any other state which may be suspected on reasonable grounds to have been obtained by dealing with any current gold or silver coin in such a manner as to diminish its weight,
the person who finds the same may seize the article or articles found and take the same forthwith before a judicial officer to be dealt with according to law.
(2) For the purposes of subsection (1) "bank-note" includes any note (by whatsoever name called) which is legal tender in the country in which it is issued.
On the arrest of any person on a charge of an offence specified in Part I of the First Schedule the person making the arrest may seize any vehicle or receptacle in the possession or custody of the arrested person at the time of the arrest and used in the conveyance of or containing any article or substance in connection with which the said offence is alleged to be or to have been committed.
Subject to sections 51 and 52, a policeman may seize or take anything which he believes on reasonable grounds will afford evidence as to the commission of any offence and thereafter that policeman or any other policeman into whose possession the thing is subsequently delivered or otherwise comes may retain it in his possession until such time as the Director of Public Prosecutions is satisfied that no use or further use will be made of the thing to afford evidence in any criminal proceedings, whether actual or contemplated, as to the commission of any offence.
(1) When on the arrest of any person on a charge of an offence relating to property, the property in respect of which the offence is alleged to have been committed is found in his possession, or when anything is seized or taken under the provisions of this Act, the person making the arrest or (as the case may be) the person seizing or taking the thing shall deliver, or cause to be delivered, the property or thing to a judicial officer within such time as in all the circumstances of the case is reasonable.
(2) Whenever anything is so seized or taken, marks of identification when practicable shall, by the person seizing it, be placed thereon at the time of the seizure or taking or as soon thereafter as can conveniently be done.
(3) The judicial officer shall cause the property or thing so seized, or taken to be detained in such custody as he may direct, taking reasonable care for its preservation until the conclusion of a summary trial or of any investigation that may be held in respect of it; and if any person is committed for trial for any offence committed with respect to the property or thing so seized or taken, or for any offence committed under such circumstances that the property or thing so seized or taken is likely to afford evidence at the trial, the judicial officer shall cause it to be further detained in like manner for the purpose of its being produced in evidence at such trial.
(4) At the conclusion of the summary trial or (as the case may be) if the Director of Public Prosecutions declines to prosecute, the judicial officer shall direct that the thing be returned to the person from whose possession it was taken, unless he is authorized or required by law to dispose of it otherwise.
(5) This section shall not apply in respect of anything seized or taken by a policeman in exercise of the powers conferred on him by section 57.
(1) If any weapon believed to be dangerous to the public peace is seized under a search warrant, it shall be kept in safe custody in such place as the judicial officer directs, unless the owner of the weapon proves to the satisfaction of the judicial officer that it was not kept for any purpose dangerous to the public peace.
(2) Any person from whom any such weapon is so taken may, if the judicial officer upon whose warrant it was seized refuses upon application made for that purpose to restore it, apply to the Minister for the restoration of such weapon. Ten days' notice of such application shall be given to the judicial officer, and the Minister shall make such order for the restoration or safe custody of such weapon as, upon such application, appears to him to be proper.
Preparatory Examination (ss 60-103)
The term "magistrate", when used in relation to preparatory examinations, means a Magistrate Grade I or over.
At the request of a public prosecutor who has decided to institute a preparatory examination against any person not in custody, the clerk of the court to which such public prosecutor is attached shall make out a summons, requiring the said person to appear before such court for the purpose of undergoing a preparatory examination and shall deliver such summons to the person who is to serve it in terms of section 62(2).
(1) A summons referred to in section 61 shall be directed to the accused person, and shall state the nature of the offence which he is alleged to have committed together with such particulars of the offence as are sufficient to enable him to know the substance of the charge he has to meet and shall also state the time and place where he is required to appear.
(2) Every summons shall be served by a person authorized to serve criminal process in the district in which the accused is required to appear, or by any other duly authorized person, upon the accused person to whom it is directed, either by delivering it to him personally, or, if the accused cannot conveniently be found, by leaving it for him at his place of business, or most usual or last known place of abode, with some inmate thereof.
(3) The service of any such summons may be proved by the testimony upon oath of the person effecting the service, or by his affidavit or by due return of service under his hand.
(4) Nothing in this section or in section 61 shall be deemed to abrogate the custom whereby an accused person may be warned through his Chief, Sub-Chief or Headman to appear before a magistrate's court.
(5) If, upon the day appointed for the appearance of any person for the purpose of undergoing a preparatory examination, he fails to appear, and the magistrate is satisfied upon the return of service that he was duly summoned, or is satisfied by evidence upon oath that he was duly warned, the magistrate may, at the request of the prosecutor, issue a warrant for the apprehension of the said person, and may also impose on him for his default a fine not exceeding P10, or, in default of payment, may sentence him to imprisonment for a term not exceeding one month. The court may, upon cause shown, remit any fine or imprisonment imposed under this subsection.
(1) When the accused is before a magistrate having jurisdiction, whether voluntarily or upon summons or after warning or after being apprehended with or without warrant or while in custody for the offence of which he is accused or any other offence, the local public prosecutor or other person charged with the prosecution of criminal cases shall institute a preparatory examination before the magistrate, and the magistrate shall proceed in the manner hereinafter described to inquire into the matters charged against the accused.
(2) Before proceeding to inquire into the matter charged against the accused, the magistrate shall read and explain the charge to the accused and the procedure on a preparatory examination shall be made clear to him but he shall not be required to make any statement in reply to the charge: this same procedure shall be followed in the case of any person subsequently joined as an accused.
(3) At any stage after the commencement of a preparatory examination any person suspected of having committed or of having taken part in the commission of the offence in respect of which the preparatory examination was instituted may be joined with the accused, and thereupon the preparatory examination of the accused and such person shall proceed jointly:
Provided that the evidence given by every witness before such joinder shall be read over to such person, and if he or his representative requests the magistrate holding the preparatory examination to recall any such witness for the purpose of being cross-examined, the magistrate shall recall him and if necessary shall direct that he be subpoenaed to reappear before him, for the purpose of being cross-examined by the said person or his representative, and re-examined by the public prosecutor.
No irregularity or defect in the substance or form of the summons or warrant or in the manner of arrest, and no variance between the charge contained in the summons or warrant and the evidence adduced on the part of the prosecution at the inquiry, shall affect the validity of any criminal proceedings at or subsequent to the hearing.
(1) A public prosecutor who has decided to institute or has instituted a preparatory examination, or an accused against whom a preparatory examination is being or is to be held (or the latter's representative), may compel the attendance of any person at such preparatory examination to give evidence, or to produce any book or document, by means of a subpoena, issued at the instance of the public prosecutor or accused, as the case may be, by the clerk of the court of the district in which the preparatory examination is being or is to be held.
(2) If a magistrate holding a preparatory examination believes that any person may be able to give evidence or to produce any book or document which is relevant to the subject of the examination, he may direct the clerk of the court to issue, in the manner aforesaid, a subpoena requiring such person to appear before him at a time and place mentioned therein to give evidence or to produce any book or document.
(3) Any such subpoena shall be served in the manner prescribed by the rules of court upon the person to whom it is addressed.
(4) A magistrate holding a preparatory examination may call as a witness any person in attendance, although not subpoenaed as a witness, or may re-call and re-examine any person already examined as a witness.
(5) Every person subpoenaed to attend a preparatory examination shall obey the subpoena and remain in attendance throughout the examination unless excused by the magistrate holding the examination.
(6) Nothing in this section shall be deemed to abrogate the custom whereby a witness may be warned through his Chief, Sub-Chief or Headman to attend before a magistrate's court.
(1) If any person subpoenaed or warned to attend a preparatory examination fails without reasonable excuse to obey the subpoena or warning, and it appears from the return or from evidence given under oath that the subpoena was served upon or warning given to the person to whom it is directed or that he is evading service or warning, or if any person who attended in obedience to a subpoena or warning has failed to remain in attendance, the magistrate holding the preparatory examination may issue a warrant, directing that he be arrested and brought, at a time and place stated in the warrant, or as soon thereafter as possible, before such magistrate or any other magistrate.
(2) Such warrant may be executed anywhere within the area of jurisdiction of the magistrate who issued it, and if the person to be arrested thereunder is outside the area, the provisions of section 38 shall mutatis mutandis apply in regard thereto.
(3) When the person in question has been arrested under the said warrant he may be detained thereunder before the magistrate who issued it or in any gaol or lock-up or other place of detention or in the custody of the person who is in charge of him, with a view to securing his presence as a witness at the preparatory examination:
Provided that the magistrate holding that examination may release him on a recognizance with or without sureties for his appearance to give evidence as required, and for his appearance at the inquiry mentioned in subsection (4).
(4) The magistrate may in a summary manner inquire into the said person's failure to obey the subpoena or warning or to remain in attendance, and unless it is proved that the said person had a reasonable excuse for such failure, the magistrate may sentence him to pay a fine not exceeding P50 or to imprisonment without the option of a fine for a term not exceeding one month.
(5) Such sentence shall be enforced and shall be subject to an appeal as if it were a sentence in a criminal case imposed by a magistrate's court of the district in which it was imposed.
(6) If a person who has entered into any recognizance for his appearance to give evidence at a preparatory examination or for his appearance at an inquiry referred to in subsection (4) fails so to appear, he may, apart from the estreatment of his recognizance, be dealt with as if he had failed to obey a subpoena or warning to attend a preparatory examination.
No repayment or tender of expenses shall be necessary in the case of a person who is required to give evidence at a preparatory examination, and who is also within five kilometres of the premises in which such examination is being held.
(1) Whenever any person appearing, either in obedience to a subpoena or warning or by virtue of a warrant, or being present and being verbally required by the magistrate to give evidence at a preparatory examination, refuses to be sworn, or having been sworn refuses to answer such questions as are put to him, or refuses or fails to produce any document or thing which he is required to produce, without in any such case offering any just excuse for such refusal or failure, the magistrate may adjourn the proceedings for any period not exceeding eight clear days and may, in the meantime, by warrant commit the person so refusing to gaol unless he sooner consents to do what is required of him. If such person upon being brought up upon the adjourned hearing again refuses to do what is required of him, the magistrate may, if he sees fit, again adjourn the proceedings, and by order commit him for a like period, and so again from time to time until such person consents to do what is required of him. An appeal shall lie from any such order of committal to the High Court and the High Court may make such order on the appeal as to it seems just.
(2) Nothing in this section shall prevent the magistrate from committing the accused for trial or otherwise disposing of the proceedings in the meantime according to any other sufficient evidence taken by him.
(3) No person shall be bound to produce at a preparatory examination any document or thing not specified or otherwise sufficiently described in the subpoena or of which he has not had adequate warning, unless he actually has it with him.
Whenever any magistrate's court has stopped the summary trial of an accused person under the powers conferred by the law governing such court, and the proceedings have thereupon become those of a preparatory examination, it shall not be necessary for the magistrate to recall any witness who has already given evidence at the trial, but the magistrate's record of evidence so given certified by him to be correct shall, for all purposes whatsoever, have the same force and effect and shall be receivable in evidence in the same circumstances as the depositions made in the course of a preparatory examination in the manner provided in section 70:
Provided that as often as it appears to the magistrate himself or it is made to appear to him either by the prosecutor or by the accused that the ends of justice might be served by having a witness already examined recalled for further examination, then such witness shall be summoned and examined accordingly. The examination so taken shall be recorded in the manner hereinafter directed as to other examinations.
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