Prosecution and Inquiry:Setting in Motion Prosecution and Inquiry Setting justice in motion

 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

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