(INDIA ACT XXXVII, 1850.)
(1st November, 1850.)
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2. Wherever the Governor shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehavior by any person in the service of the Crown not removable from his appointment without the sanction the Governor, he shall cause the substance of the imputations to distinct articles of charge, and shall order a formal and public inquiry and into the truth thereof.
3. The Inquiry may be committed either to the Court, Board or other authority to which person accused is subordinate, or to any other person or persons, to be specially appointed by the Governor commissioners for the purpose: notice of which commission shall be given to the person accused ten days at least before the beginning of the inquiry.
4. When the Governor shall think fit to conduct the prosecution, he shall nominate some person to conduct the same on his behalf.
5. When the charge shall be brought by an accuser, the Governor shall require the accusation to be reduced to writing, and verified by the oath or solemn affirmation of the accuser; and every person who shall willfully and maliciously make any false accusation under this Act, upon such oath or affirmation, shall be liable to the penalties of perjury, but this enactment shall not be construed to prevent Governor from instituting any inquiry which he shall think fit, without such ace accusation on oath or solemn affirmation as aforesaid.
6. Where the imputations shall have been made by an accuser, and the Governor shall think fit to leave to him the conduct of the prosecution, the Governor before appointing the commission shall require him to furnish reasonable security that he will attend and prosecute the charge thoroughly and effectually, and also will be forthcoming to answer any counter-charge or action which may be afterwards brought against him for malicious prosecution or perjury or subornation of perjury as the case may be.
7. At any subsequent stage of the proceedings, the Governor may, if he think fit, abandon the prosecution, and in such case may, if he think fit, on the application of the accuser, allow him to continue the prosecution, if lie is desirous of so doing on his furnishing such security as is hereinbefore mentioned.
8. The commissioners shall have the same power of punishing contempt and obstructions to their proceedings as is given to civil and criminal Courts by the Code of Criminal Procedure, and shall have the same powers for the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to the same protection as the District Judge, except that all process to cause the attendance of witness or other compulsory process, shall be served through and executed in Rangoon by the Court of Small Causes and elsewhere by the District Court in whose jurisdiction the witness or other person resides, on whom the process is to be served. When the commission has been issued to a Court, or other person or persons having power issue such process in the exercise of their ordinary authority, they may also use all such power for the purposes of the commission.
9. All persons disobeying any lawful process issued as aforesaid for the purposes of the commission shall be liable to the same penalties as if the same had issue originally from the Court or other authority through whom it is executed.
10. A copy of the articles of charge, and list of the documents and witnesses by which each charge is to be sustained, shall be delivered to the person accused at least three days before the beginning of the inquiry, exclusive of the day of delivery and the first day of the inquiry.
11. At the beginning of the inquiry the prosecutor shall exhibit the articles of charge to the commissioners, which shall be openly read, and the person accused shall thereupon be required to plead "guilty" or "not guilty" to each of them, which pleas shall be forthwith recorded with the articles of charge. If the person accused refuses, or without reasonable cause neglects, to appear to answer the charge either personally or by his counsel or agent, he shall be taken to admit the truth of the articles of charge.
12. The prosecutor shall then be entitled to address the commissioners in of the articles of charge, and of the evidence by which they are to be proved: his address shall not be recorded.
13. The oral and documentary evidence for the prosecution shall then exhibited: the witnesses shall be examined by or on behalf of the prosecutor and may be cross-examined by or on behalf of the person accused. The prosecutor shall be entitled to re-examine the witnesses on any points on which they have been cross-examine, but not on any new matter without leave of the commissioners, who also may put such questions as they think fit.
14. If it shall appear necessary before the close of the case for the prosecution, the commissioners may in their discretion allow the prosecutor to exhibit evidence not included in the list given to the person accused, or may themselves call for new evidence; and in such case the person accused shall be entitled to have, if he demand it, an adjournment of the proceedings for three clear days before the exhibition of evidence exclusive of the day of adjournment and of the day to which the proceedings are adjourned.
15. When the case for the prosecution is closed, the person accused shall be required to make his defence, orally or in writing, as he shall prefer. If made orally, it shall not be recorded; if made in writing, it shall be recorded, after being and in that case a copy shall be given at the same time to the prosecutor.
16. The evidence for the defence shall then be exhibited, and the witnesses examined, who shall be liable to cross-examination and re-examination and to examination by the commissioners according to the like rules as the witnesses for the prosecution.
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18. The commissioners or some person appointed by them shall take notes in English of all the oral evidence, which shall be read aloud to each witness by whom the same was given, and, if necessary, explained to him in the language in which was given, and shall be recorded with the proceedings.
19. If the person accused makes only an oral defence, and exhibits no evidence, the enquiry shall end with his defence; if he records a written defence, or exhibits evidence, the prosecutor shall be entitled to a general oral reply on the whole case, and may also exhibit evidence to contradict any evidence exhibited for the defence,in which case the person accused shall not be entitled to any adjournment of the proceedings although such new evidence were not included in the list furnished to him.
20. When the commissioner shall be of opinion that the articles of charge of any of them are not drawn with. sufficient clearness and precision, the commissioners may their discretion, require the same to be amended, and may thereupon, on the application of the person accused, adjourn the inquiry for reasonable time. The commissioners may also, if they think fit, adjourn the inquiry from time to time on the application of either the prosecutor or the person accused, on the ground of sickness or unavoidable absence of any witness or other reasonable cause. When application is made and refused, the commissioners shall record the application, their reasons for refusing to comply with it.
21. After the close of the inquiry the commissioners shall forthwith report to the Governor their proceedings under the commission, and shall send with the record thereof their opinion upon each of the articles of charge separately, with such observations as they think fit on the whole case.
22. The Governor, on consideration of the report of the commissioners order them to take further evidence, or give further explanation of their opinions. He may also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges. When special commissioners have been appointed, the Governor may also, if he thinks fit, refer the report of the commissioners to the Court or other authority to which the person accused is sub-ordinate, for their opinion on the case; and will finally pass such orders thereon as appear just and consistent with his powers in such cases.
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25. Nothing in this Act shall be construed to affect the authority of the Governor for suspending or removing any public servant for any cause without an inquiry under this Act.¹