Attendance of Persons Confined in Prisons | BNSS 2023

Attendance of Persons Confined or Detained in Prisons: Chapter XXIV of the BNSS, 2023, Sections 301 to 306, the Production Order, the Exclusions and the Commission

A person in prison cannot walk into a courtroom. If a court needs him — to answer a charge in another case, or to give evidence as a witness — somebody must be commanded to bring him, and that command must be addressed to the person who has him. Chapter XXIV of the Bharatiya Nagarik Suraksha Sanhita, 2023 supplies the machinery in six sections.

The Chapter is short and its structure is simple. Section 302 confers the power to order production. Section 303 permits the State Government to exclude a person or class of persons from being removed at all. Section 304 lists the four situations in which the prison officer must abstain from carrying out the order. Section 305 governs custody during the attendance. And section 306 supplies the alternative: instead of bringing the prisoner to the court, the court may send a commission to the prison.

1. The Definitions and the Power

Figure 1: The Chapter, section by section

Sections 301 and 302, BNSS 2023

Section 301. In this Chapter — (a) “detained” includes detained under any law providing for preventive detention; (b) “prison” includes — (i) any place which has been declared by the State Government, by general or special order, to be a subsidiary jail; (ii) any reformatory, Borstal institution or other institution of a like nature.

Section 302(1). Whenever, in the course of an inquiry, trial or other proceeding under this Sanhita, it appears to a Criminal Court — (a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or for the purpose of any proceedings against him; or (b) that it is necessary for the ends of justice to examine such person as a witness, the Court may make an order requiring the officer in charge of the prison to produce such person before the Court.

Section 302(2). Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.

Section 302(3). Every order submitted for countersigning shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary.

⚠ Three points on the definitions and the power

“Detained” covers preventive detention. A person held under a preventive detention law is not an accused and is not undergoing a sentence, but the Chapter applies to him, and a court may require his production as a witness or to answer a charge.

“Prison” is defined widely, and includes a subsidiary jail declared as such by the State Government and a reformatory, Borstal institution or other institution of a like nature — so a young person in an institution is within the Chapter.

The second-class Magistrate’s order requires countersigning. The requirement is not a formality: the order is not to be forwarded to, or acted upon by, the prison officer until the Chief Judicial Magistrate has countersigned, and the request must be accompanied by a statement of the facts making it necessary.

📖 State of Maharashtra v. Saeed Sohail Sheikh, (2012) 13 SCC 192

Facts: Undertrial prisoners facing trial in a serious case were repeatedly not produced before the trial court on the dates fixed, the prison and escort authorities citing shortage of escort, security considerations and administrative difficulty. The trial was delayed in consequence. The question was the nature of the obligation to produce a prisoner whom a court has ordered to be produced.

Held: The Supreme Court held that the production of an undertrial prisoner before the court on the date fixed is an obligation, and not a matter within the discretion or convenience of the prison or escort authorities. A trial cannot proceed if the accused is not before the court, and the repeated failure to produce prisoners defeats the right to a speedy trial and brings the administration of justice into disrepute. The Court held that administrative difficulty, shortage of escort and similar considerations are matters for the State to solve by making adequate arrangements, and are not answers to a judicial order; where security genuinely requires it, the proper course is to seek recourse to the available alternatives — production through video-conferencing where the law permits, or an application to the court — rather than simply to fail to produce. It issued directions to the State to ensure that prisoners are produced as ordered.

Ratio: The production of a prisoner pursuant to a court’s order is an obligation on the prison and escort authorities. Administrative difficulty is not an answer, and a failure to produce defeats the right to a speedy trial.

2. Exclusion by the State Government: Section 303

Section 303 permits the State Government at any time, having regard to the matters the section specifies, by general or special order, to direct that any person or class of persons shall not be removed from the prison in which he or they are confined; and thereupon, so long as the order remains in force, every order made under section 302 shall be subject to it.

Element	Position
Who makes the order	The State Government, not the court and not the prison authority
Form	A general order covering a class of persons, or a special order covering a named person
The considerations	The matters the section specifies — in substance, the nature of the offence for which, or the grounds on which, the person is confined or detained, the likelihood of a disturbance of public order if he is removed, and the public interest generally
The effect	Every production order under section 302 becomes subject to the State Government’s order, and section 304 requires the prison officer to abstain from carrying out a production order in respect of such a person
What it does not do	It does not prevent the person’s evidence being taken. Section 306 permits the Court to issue a commission for his examination in the prison, and section 530 permits proceedings to be conducted in electronic mode

⚠ The exclusion power and its proper limits

Section 303 is an executive power to keep a person in the prison, and it operates on orders made by courts. That makes it a provision to be applied with care, since it permits the executive to qualify the effect of a judicial order.

What saves it is that it does not prevent the court from obtaining the person’s evidence. It regulates removal from the prison, not the taking of evidence; and section 306 supplies the alternative by permitting a commission to be issued for his examination in the prison.

It follows that where a section 303 order is in force and the court needs the person’s evidence, the correct course is a commission under section 306, or the use of audio-video electronic means under section 530 and the proviso to section 308 — not an abandonment of the evidence.

3. When the Officer Must Abstain: Section 304

Figure 2: The four situations

Section 304 is the only provision in the Chapter that permits a production order not to be carried out, and it is drafted as a duty rather than a discretion. In each of the four situations the officer shall abstain; outside them he shall comply. And in every case he must send to the Court a statement of the reason for so abstaining.

Where the person is, by reason of sickness or infirmity, unfit to be removed from the prison — and that unfitness is certified by the medical officer of the prison. The officer does not form his own view of the person’s health; a certificate is required.
Where the person is under committal for trial, or under remand pending trial or pending a preliminary investigation — because he is already answerable to another Court, whose process would be disrupted by his removal.
Where the person is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison — because he will be released before the journey can be completed.
Where the person is one to whom an order made by the State Government under section 303 applies.

The requirement to send a statement of the reason is what makes the section workable. The Court is told why its order was not carried out, and it may then make such other order as it thinks fit — a fresh production order at a later date, a commission under section 306, or a direction that the evidence be taken by audio-video electronic means.

4. Custody During the Attendance: Section 305

Section 305, BNSS 2023

Subject to the provisions of section 304, the officer in charge of the prison shall, upon delivery of an order made under sub-section (1) of section 302 —

(a) cause the person named therein to be taken to the Court in which his attendance is required, so as to be present in Court at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises his being taken back to the prison in which he was confined or detained;

(b) cause him to be taken back to the prison when he is no longer required by the Court.

📖 Charles Sobhraj v. Superintendent, Central Jail, Tihar, (1978) 4 SCC 104

Facts: A prisoner challenged the conditions of his confinement, including the use of fetters and segregation, contending that a person in custody retains his fundamental rights and that restrictions on him must be justified by law and by necessity.

Held: The Supreme Court held that imprisonment does not spell farewell to fundamental rights. A prisoner retains all his rights except those necessarily lost as an incident of confinement, and any further deprivation must be justified by law and must satisfy the tests of reasonableness and necessity. The Court held that restrictions on a prisoner cannot be imposed as a matter of administrative convenience or routine, and that fetters and other harsh measures require justification in each case by reference to a real and present risk; a blanket practice is not a justification. It emphasised that the conditions of custody are subject to judicial oversight, and that a court may examine whether what is done to a prisoner is warranted.

Ratio: A prisoner retains his fundamental rights except those necessarily lost by confinement. Restrictions must be justified by law and by necessity in the individual case, and are subject to judicial oversight.

The decision bears directly on section 305. The section requires the person to be kept in custody in or near the Court, and the custody it authorises is custody for the purpose of the attendance and no more. Restraints during the attendance are not matters of routine; they require justification, and the Court before which the person is produced may examine what is done to him while he is in or near it.

5. The Alternative: Section 306

Section 306 provides the escape from the whole of the machinery. Where the person whose evidence is required is confined or detained in a prison, the Court may, instead of requiring his attendance, issue a commission for his examination in the prison under the provisions of Part B of Chapter XXV — sections 319 to 325.

When a commission is the better course	Why
An order under section 303 is in force in respect of the person	Production is barred, and section 304 requires the officer to abstain. The commission is the only route
The person is unfit to be removed by reason of sickness or infirmity	Production would endanger him. The commission brings the court to him
The prison is far from the Court, and the evidence is short	The expense and delay of production would be out of proportion to the evidence
Production would involve a security risk	The risk is avoided altogether, and the evidence is not lost
The person’s custody will expire before the journey can be completed	Section 304 requires the officer to abstain. A commission may be issued while he is still in prison

The commission is governed by the ordinary provisions: the parties may forward interrogatories and may appear before the commissioner and examine the witness, and the deposition returned may be read in evidence by either party and forms part of the record. The person in prison therefore gives his evidence under the same safeguards as any other witness examined on commission, and the accused’s right to cross-examine is preserved.

⚠ And the newer alternative

Section 530 permits all trials, inquiries and proceedings under the Sanhita — including the examination of witnesses — to be held in electronic mode, by the use of electronic communication or audio-video electronic means.

The proviso to section 308 carries this into the evidence chapter, permitting evidence to be recorded by audio-video electronic means while preserving the requirement that it be taken in the presence of the accused or of his advocate.

For a witness in prison, that is frequently the most practical course of all: it avoids the journey, the escort, the security risk and the expense, and it preserves the immediacy that a written commission does not. Where the facility exists, it is to be preferred to a commission on paper.

6. Key Takeaways

The position stated shortly

1. Section 301: “detained” includes detained under a law providing for preventive detention; “prison” includes a subsidiary jail so declared, and a reformatory, Borstal institution or other institution of a like nature.

2. Section 302: a Criminal Court may order the officer in charge of a prison to produce a person confined or detained there, either to answer a charge or because it is necessary for the ends of justice to examine him as a witness.

3. An order by a Magistrate of the second class is not to be forwarded to or acted on by the prison officer unless countersigned by the Chief Judicial Magistrate, and the request must be accompanied by a statement of the facts.

4. The production of a prisoner pursuant to a court’s order is an obligation, not a matter of administrative convenience; a failure to produce defeats the right to a speedy trial: Saeed Sohail Sheikh.

5. Section 303: the State Government may, by general or special order, direct that a person or class of persons shall not be removed from prison, and every production order becomes subject to it.

6. Section 304: the officer shall abstain where the person is certified unfit by the prison medical officer; is under committal or remand; is in custody for a period which would expire before the order could be complied with; or is covered by a section 303 order. He must send the Court a statement of the reason.

7. Section 305: the officer causes the person to be taken to the Court, kept in custody in or near it until examined or until the Court authorises his return, and taken back when no longer required.

8. A prisoner retains his fundamental rights except those necessarily lost by confinement; restraints require justification and are subject to judicial oversight: Charles Sobhraj.

9. Section 306: instead of requiring attendance, the Court may issue a commission for his examination in the prison, under Part B of Chapter XXV.

10. An exclusion under section 303 bars removal, not the taking of evidence. The correct course is a commission or audio-video electronic means under section 530, not the abandonment of the evidence.

7. Frequently Asked Questions

When can a court order a prisoner to be produced before it?

Where it appears that he should be brought before the Court to answer a charge of an offence or for any proceeding against him, or that it is necessary for the ends of justice to examine him as a witness: section 302(1).

Does the Chapter apply to a person under preventive detention?

Yes. Section 301 provides that “detained” includes detained under any law providing for preventive detention, and “prison” includes a subsidiary jail, a reformatory, a Borstal institution and other institutions of a like nature.

When may the prison officer refuse to produce a prisoner?

In the four situations in section 304: where the person is certified by the prison medical officer as unfit for removal by reason of sickness or infirmity; where he is under committal for trial or under remand; where his custody would expire before the order could be complied with; or where a State Government order under section 303 applies. He must send the Court a statement of the reason.

Can the State Government stop a prisoner from being produced?

Yes, under section 303, by a general or special order directing that a person or class of persons shall not be removed from the prison. But the order bars removal, not the taking of evidence: the Court may issue a commission under section 306 or take the evidence by audio-video electronic means.

Where is the prisoner kept while attending court?

Section 305 requires the officer to keep him in custody in or near the Court until he has been examined or until the Court authorises his being taken back, and then to cause him to be taken back to the prison when he is no longer required.

Is there an alternative to producing the prisoner at all?

Yes. Section 306 permits the Court to issue a commission for his examination in the prison instead of requiring his attendance. And section 530, with the proviso to section 308, permits evidence to be recorded by audio-video electronic means, which is frequently the more practical course.

Related Topics

Evidence in Inquiries and Trials: Sections 307 to 336, BNSS
Commissions for the Examination of Witnesses: Sections 319 to 325
Electronic Mode of Proceedings: Section 530, BNSS
Remand during Investigation: Section 187, BNSS
Police Custody and Judicial Custody Distinguished
Processes to Compel the Attendance of Persons: Chapter VI