[12th March, 1852] Repealed by Act 10 of 1875 Passed by the Governor General of India in Council
on the 12th March, 1852. An Act for further Improving the Administration of Criminal
Justice in Her Majesty's Courts of Justice in the Territories of the East India
Company. Whereas offenders
frequently escape conviction on their trials, by reason of the technical
strictness of criminal proceedings in matters not material to the merits of the
case; and whereas such technical strictness may safely be relaxed in many
instances, so as to insure the punishment of the guilty, without depriving the
accused of any just means of defence; and whereas a failure of justice often
takes place on the trial of persons charged with felony and misdemeanor by
reason of variances between the statement in the indictment on which the trial
is had, and the proof of names, dates, matters, and circumstances therein
mentioned, not material to the merits of the case, and by the misstatement
whereof the person on trial cannot have been prejudiced in his defence. It is
hereby enacted as follows: From
and after the coming of this Act into operation, whenever, on the trial of any
indictment for any felony or misdemeanor, there shall appear to be any variance
between the statement in such indictment and the evidence offered in proof
thereof, it shall and may be lawful for the Court before which the trial shall
be had, if it shall consider such variance not material to the merits of the
case, and that the defendant cannot be prejudiced thereby in his defence on
such merits, too order such indictment to be amended, according to the proof,
by some Officer of the Court or other person, both in that part of the
indictment where such variance occurs, and in every other part of the
indictment which it may become necessary to amend, on such terms as to
postponing the trial to be had before the same or another jury, as such Court
shall think reasonable; and after any such amendment the trial shall proceed,
whenever the same shall be proceeded with, in the same manner in all respects,
and, with, the same consequences, both with respect to the liability of
witnesses to be indicted for perjury and otherwise, as if no such variance, had
occurred: provided that, in all such cases where the trial shall be so
postponed as aforesaid, it shall be lawful for such Court to respite the
recognizances of the prosecutor and witnesses, and of the defendant, and his
surety or sureties, if any, accordingly, in which case the prosecutor and
witnesses shall be bound to attend to prosecute and give evidence respectively,
and the defendant shall be bound to attend to be tried at the time and place
to, which such trial shall be postponed, without entering into any fresh
recognizances for that purpose, in such and the same manner as if they were
originally bound by their recognizance to appear and prosecute, or give evidence,
at the time and place to which such trial shall have been so postponed:
Provided also, that where any such trial shall be to be had before another
jury, the Crown and the defendant shall respectively be entitled to the same
challenges as they were respectively entitled to before the first jury was
sworn. Every
verdict and judgment which shall be given after the making of any amendment
under the provisions of this Act, shall be of the same force and effect in all
respects as if the indictment had originally been in the same form in which it
was after such amendment was made. If it
shall become necessary at any time, for any purpose whatsoever, to draw up a
formal record in any case where any amendment shall have been made under the
provisions of this Act, such record shall be drawn up in the form in which the
indictment was after such amendment was made, without taking any notice of the
fact of such amendment having been made. In any
indictment for murder or manslaughter preferred after the coming of this Act
into operation, it shall not be necessary to set forth the manner in which, or
the means by which, the death of the deceased was caused, but it shall be
sufficient, in every indictment for murder, to charge that the defendant did
feloniously, wilfully, and of his malice aforethought kill and murder the
deceased, and it shall be sufficient in every indictment for manslaughter to
charge that the defendant did feloniously kill and slay the deceased. In any
indictment for forging, uttering, stealing, embezzling, destroying, or
concealing, or for obtaining by false pretences, any instrument, it shall be
sufficient to describe such instrument by any name or designation by which the
same may be usually known, or by the purport thereof, without setting out any
copy or fac-simile thereof, or otherwise describing the same, or the value
thereof. In any
indictment for engraving or making the whole or any part of any instrument,
matter, or thing whatsoever, or for using or having the unlawful possession of
any plate, or other material upon which the whole or any part of any instrument,
matter, or thing whatsoever shall have been engraved or made, or for having the
unlawful possession of any paper upon which the whole or any part of any
instrument, matter, or thing whatsoever shall have been made or printed, it
shall be sufficient to describe such instrument, matter, or thing by any name
or designation by which the same may be usually known, without setting out any
copy or fac-simile of the whole or any part of such instrument, matter, or
thing. In all
other cases, wherever it shall be necessary to make any averment in any
indictment as to any instrument, whether the same consists wholly or in part of
writing, print, or figures, it shall be sufficient to describe such instrument
by any name or designation by which the same may be usually known, or by the
purport thereof, without setting out any copy or fac-simile of the whole or any
part thereof. From
and after the coming of this Act into operation, it shall be sufficient in any
indictment for forging, uttering, offering, disposing of, or putting off any
instrument whatsoever, or for obtaining or attempting to obtain any property by
false pretences, to allege that the defendant did the act with intent to
defraud, without alleging the intent of the defendant to be to defraud any
particular person; and on the trial of any of the offences in this section
mentioned, it shall not be necessary to prove an intent on the part of the
defendant to defraud any particular person, but it shall be sufficient to prove
that the defendant did the act charged with an intent to defraud. And
whereas offenders often escape conviction by reason that such persons ought to
have been charged with attempting to commit offences, and not with the actual
commission thereof; it is enacted, that if on the trial of any person charged
with any felony or misdemeanor, it shall appear to the jury upon the evidence
that the defendant did not complete the Offence charged, but that he was guilty
only of an attempt to commit the same, such person shall not by reason thereof
be entitled to be acquitted, but the jury shall be at liberty to return as
their verdict that the defendant is not guilty of the felony or misdemeanor
charged, but is guilty of an attempt to commit the same, and thereupon such
person shall be liable to be punished in the same manner as if he had been
convicted upon an indictment for attempting to commit the particular felony or
misdemeanor charged in the said indictment; and no person so tried as herein
lastly mentioned shall be liable to be afterwards prosecuted for an attempt to
commit the felony or misdemeanor for which he was so tried. And
whereas it is enacted by the 8th Section of Act XXXI of 1838
that ?on the trial of any person for any of the offences therein before mentioned,
or for any felony whatever where the crime charged shall include an assault
against the person, it shall be lawful for the jury to acquit of the felony,
and to find a verdict of guilty of assault against the person indicted, if the
evidence shall warrant such finding?: and whereas great difficulties have
arisen in the construction of such enactment: for remedy thereof it is enacted
that the said enactment shall be and the same is hereby repealed. If upon
the trial of any person upon any indictment for robbery, it shall appear to the
jury upon the evidence that the defendant did not commit the crime of robbery,
but that he did commit an assault with intent to rob, the defendant shall not
by reason thereof be entitled to be acquitted, but the jury shall be at liberty
to return as their verdict that the defendant is guilty of an assault with
intent to rob, and thereupon such defendant shall be liable to be punished in
the same manner as if he had been convicted upon an indictment for feloniously
assaulting with intent to rob; and no person so tried as is herein lastly
mentioned shall be liable to be afterwards prosecuted for an assault with
intent to commit the robbery for which he was so tried. If upon
the trial of any person for any misdemeanor, it shall appear that the facts
given in evidence amount in law to a felony, such person shall not by reason
thereof be entitled to be acquitted of such misdemeanor; and no person tried
for such misdemeanor shall he liable to be afterwards prosecuted for felony on
the same facts, unless the Court before which such trial may be had shall think
fit, in its discretion, to discharge the jury from giving any verdict upon such
trial, and to direct such person to be indicted for felony, in which case such
person may be dealt with in all respects as if he had not been put upon his
trial for such misdemeanor. If upon
the trial any person indicted for embezzlement as a clerk, servant, or person
employed for the purpose, or in the capacity of a clerk or servant, it shall be
proved that he took the property in question in any such manner as to amount in
law to larceny, he shall not by reason thereof he entitled to be acquitted, but
the jury shall he at liberty to return as their verdict that such person is not
guilty of embezzlement, but is guilty of simple larceny, or of larceny as a clerk,
servant, or person employed for the purpose, or in the capacity of a clerk or
servant, as the case may he, and thereupon such person shall be liable to be
punished in the same, manner as if he had been convicted upon an indictment for
such larceny; and if upon the trial of any person indicted, for larceny it
shall be proved that lie took the property in question in, any such manner as
to amount, in law to embezzlement, he shall not by reason thereof be entitled
to be acquitted, but the jury shall be at liberty to return as their verdict
that such person is not guilty of larceny, but is guilty of embezzlement, and
thereupon such person shall be liable to be punished in the same manner as if
he had been convicted upon an indictment for such embezzlement; and no person
so tried for embezzlement or larceny as aforesaid shall be liable to be
afterwards prosecuted for larceny or embezzlement upon the same, facts. If upon
the trial of two or more persons indicted for jointly receiving any property,
it shall be proved that one or more of such persons separately received any
part of such property, it shall be lawful for the jury to convict upon such
indictment such of the said persons as shall he proved to have received any
part of such property. And
whereas it frequently happens that the principal in a felony is not in custody
or amenable to justice, although several accessories to such felony or
receivers at different times of stolen property the subject of such felony may
be in custody or amenable to justice: for the prevention of several trials, it
is enacted that any number of such accessories or receivers may he charged with
substantive felonies in the same indictment, notwithstanding the principal
felon shall not be included in the same indictment, or shall not be in custody
or amenable to justice. It
shall he lawful to insert several counts in the same indictment against the
same person for any number of distinct acts of stealing, not exceeding three,
which may have been committed by him against the same person within the space
of six calendar months from the first to the last of such acts, and to proceed
thereon for all or any of them. If upon
the trial of any indictment for larceny, it shall appear that the property
alleged in such indictment to have been stolen at one time was taken at different
times, the prosecutor shall not by reason thereof be required to elect up on
which taking he will proceed, unless it shall appear that there were more than
three takings, or that more than the space of six calendar months elapsed
between the first and the last of such takings; and in either of such
last-mentioned cases the prosecutor shall be required to elect to proceed for
such number of takings, not exceeding three, as appear to have taken place
within the period of six calendar months from the first to the last of such
takings. In
every indictment in which it shall be necessary to make any averment as to any
money or any note of any bank, it shall be sufficient to describe such money or
bank-note simply as money, without specifying any particular coin or banknote;
and such allegation, so far as regards the description of the property, shall
be sustained by proof of any amount of coin or of any bank-note, although the
particular species of coin of which such amount was composed, or the particular
nature of the bank-note, shall not be proved, and in cases of embezzlement and
obtaining money or bank-notes by false pretences, by proof that the offender
embezzled or obtained any piece of coin or any bank-note, or any portion of the
value thereof, although such piece of coin or bank-note may have been delivered
to him in order that some part of the value thereof should be returned to the
party delivering the same, or to any other person, and such part shall have
been returned accordingly. In
every indictment for penury, or for unlawfully, wilfully, falsely,
fraudulently, deceitfully, maliciously, or corruptly taking, making, signing,
or subscribing any oath, affirmation, declaration, affidavit, deposition, bill,
answer, notice, certificate, or other writing, it shall be sufficient to set
forth the substance of the offence charged upon the defendant, and by what Court
or before whom the oath, affirmation, declaration, affidavit, deposition, bill,
answer, notice, certificate, or other writing was taken, made, signed, or
subscribed, without setting forth the bill, answer, information, indictment,
declaration, or any part of any proceeding either in law or in equity, and
without setting forth the commission or authority of the Court or person before
whom such offence was committed. In
every indictment for subornation of perjury, or for corrupt bargaining or
contracting with any person to commit wilful and corrupt perjury, or for
inciting, causing, or procuring any person unlawfully, wilfully, falsely,
fraudulently, deceitfully, maliciously or corruptly to take, make, sign or
subscribe any oath, affirmation, declaration, affidavit, deposition, bill,
answer, notice, certificate, or other writing, it shall be sufficient, wherever
such perjury or other offence aforesaid shall have been actually committed, to
allege the offence of the person who actually committed such perjury or other
offence in the manner hereinbefore mentioned, and then to allege that the
defendants unlawfully, wilfully, and corruptly did cause and procure the said
person the said offence, in manner and form aforesaid, to do and commit; and
wherever such perjury or other offence aforesaid shall not have been actually
committed, it shall be sufficient to set forth the substance of the offence
charged upon the defendant, without setting forth or averring any of the
matters or things hereinbefore rendered unnecessary to be set forth or averred
in the case of wilful and corrupt perjury. No
indictment for any offence shall be held insufficient for want of the averment
of any matter unnecessary to be proved, nor for the omission of the words ?as
appears by the record,? or of the words ?with force and arms,? or of the words
?against the peace,? nor for the insertion of the words ?against the form of
the statute,? instead of ?against the form of the statutes,? or vice vers?, nor for that any
person mentioned in the indictment is designated fey a name of office, or other
descriptive appellation, instead of hisproper name, nor for omitting to state
the time at which the offence was committed in any case where time is not of
the essence of the offence, nor for stating the time imperfectly, nor for
stating the offence to have been committed on a day subsequent to the finding
of the indictment, or on an impossible day, or on a day that never happened,
nor for want of a proper or perfect venue, nor for want of a proper or formal
conclusion, nor for want of or imperfection in the addition of any defendant,
nor for want of the statement of the value or price of any matter or thing, or
the amount of damage, injury, or spoil, in any case where the value or price,
or the amount of damage, injury, or spoil, is not of the essence of the
offence. Every
objection to any indictment for any formal defect apparent on the face thereof
shall be taken, by demurrer or motion to quash such indictment, before the jury
shall be sworn, and not afterwards; and every Court before which any such
objection shall be taken for any formal defect may, if it be thought necessary,
cause the indictment to be forthwith amended in such particular by some Officer
of the Court, or other person, and thereupon the trial shall proceed as if no
such defect had appeared. No
person prosecuted shall be entitled to traverse or postpone the trial of any
indictment found against him at any Session of the Peace, Session of Oyer and
Terminer, or Session of Gaol Delivery; provided always that if the Court, upon
the application of the person so indicted or otherwise, shall be of opinion
that he ought to be allowed a further time, either to prepare for his defence
or otherwise, such Court may adjourn the trial of such person to the next
subsequent Session, upon such terms as to bail or otherwise as to such Court
shall seem meet, and may respite the recognizances of the prosecutor and
witnesses accordingly, in which case the prosecutor and witnesses shall be
bound to attend to prosecute and give evidence at such subsequent Session without
entering into any fresh recognizance for that purpose. In any
plea of autrefois convict or autrefois acquit it shall be sufficient for any
defendant to state that he has been lawfully convicted or acquitted (as the
case may be) of the said offence charged in the indictment. Whenever
any person shall be convicted of any one of the offences following, as an indictable
misdemeanor; that is to say,-any cheat or fraud punishable at Common Law; any
conspiracy to cheat or defraud, or to extort money or goods, or falsely to
accuse of any crime, or to obstruct, prevent, pervert, or defeat the course of
public justice; any escape or rescue from lawful custody, on a criminal charge;
any public and indecent exposure of the person; any indecent assault, or any
assault occasioning actual bodily harm; any attempt to have carnal knowledge of
a girl under twelve years of age; any public selling, or exposing for public
sale or to public view, of any obscene book, print, picture, or other indecent
exhibition, it shall be lawful for the Court to sentence the offender to be
imprisoned for any term now warranted by law, and also to be kept to hard
labour during the whole or any part of such term of imprisonment. In the
construction of this Act the word ?indictment? shall be understood to include
?information,? ?inquisition,? and ?presentment,? as well as ?indictment,? and
also any ?plea,? ?replication,? or other pleading; and the terms ?finding of
the indictment,? shall he understood to include ?the taking of an inquisition,?
?the exhibiting of an information,? and ?the making a presentment?; and
wherever in this Act, in describing or referring to any person or party,
matter, or thing, any word importing the singular number or masculine gender is
used, the same shall be understood to include and shall be applied to several
persons and parties as well as one person or party, and females as well as
males, and bodies corporate as well as individuals, and several matters and
things as well as one matter or thing; and the word ?property? shall be
understood to include goods, chattels, money, valuable securities, and every
other matter or thing, whether real or personal, upon or with respect to which
any offence may be committed. This
Act shall come into operation from and after the tenth day of April, One
thousand eight hundred and fifty-two. Criminal Procedure (Supreme Courts) Act, 1852 [Repealed]
[Act 16 of 1852]