Law and You >Procedural Laws > BNSS > Attendance of Persons Confined or Detained in Prisons (Ss. 301 to 306)
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has laid down specific provisions to ensure the attendance of persons who are confined or detained in prisons during the course of judicial proceedings. This provision is crucial because many under trial prisoners, convicts, or detainees may be required to appear before a court as accused, witnesses, or for other legal purposes. Ensuring their attendance strikes a balance between the needs of justice and the rights of the individual, while also addressing security concerns and administrative challenges. The BNSS continues the legislative intent to improve efficiency, fairness, and procedural safeguards. By enabling courts to secure the presence of such persons lawfully, the BNSS not only strengthens the justice delivery system but also upholds the principles of fair trial, access to justice, and due process of law. In this article, let us discuss provisions related to the attendance of persons confined or detained in prisons under Chapter XXIV of the Bharatiya Nagarik Suraksha Sanhita, 2023.
S. 301 BNSS:
Definitions:
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.
The purpose of these definitions is to provide clarity and a broader scope for the provisions in the subsequent sections of Chapter XXIV BNSS, particularly Section 302, which deals with obtaining the attendance of prisoners in court.
Section 301 BNSS provides definitions for the terms “detained” and “prison” within the context of Chapter XXIV BNSS, which deals with the attendance of persons confined or detained in prisons.
It clarifies that term “detained” is not limited to prison detention but also includes those held under any law for preventive detention.
“Prison” encompasses places declared as subsidiary jails or other similar institutions by the State Government. This includes any place declared by the State Government to be a subsidiary jail, or any reformatory, Borstal institution, or similar institution.
Note: In Britain in the past, a borstal was a kind of prison for young criminals, who were not old enough to be sent to ordinary prisons.
S. 302 BNSS:
Power to Require Attendance of Prisoners:
(1) Whenever, in the course of an inquiry, trial or 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 answering to the charge or for the purpose of such proceeding or for giving evidence.
(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.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
Section 302 BNSS grants a Criminal Court the power to issue an order to a prison official to produce a prisoner before the court. This is for purposes such as answering to a charge, participating in proceedings against them, or providing evidence in a trial or inquiry. Essentially, it allows for the production of a prisoner from jail for the court’s proceedings. The prisoner can be required to bring in front of the Court for specific reasons, including:
- To answer a charge of an offense.
- For the purpose of any proceedings against the prisoner.
- To give evidence in an inquiry, trial, or other proceeding.
In Mohd Daud V. Superintendent, District Jail, Moradabad, 1993 Cr LJ 1358 (All) case, where the defendant was arrested and detained in Maharashtra under the NDPS Act brought to Moradabad in U.P. in connection with another case, after the completion of the Moradabad trial, he had to be returned to the prison he was brought in, even though his detention was automatically terminated under Maharashtra’s NDPS Act. It was established that there was no such thing. Or it no longer exists after he was transferred to Moradabad. But this illegality was cured by a subsequent, valid remand order for a pending NDPS Act case in Bombay.
In Bharti Sachdeva V. State of Rajasthan, 1996 Cr LJ 2102 (Raj) case, the Rajasthan High Court held that if a person detained in Indore prison is taken to Kota under another criminal investigation warrant, the surrender warrant can only be issued to answer an investigation, trial, or other processes, or accusation, which is illegal for being examined as a witness and do not ask about other crimes
Where an order under Section 302(1) BNSS 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.
Every order submitted for countersigning under Section 302(2) BNSS shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order.
S. 303 BNSS:
Power of State Government or Central Government to Exclude Certain Persons from Operation of Section 302:
(1) The State Government or the Central Government, as the case may be, may, at any time, having regard to the matters specified in sub-section (2), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under section 302, whether before or after the order of the State Government or the Central Government, shall have effect in respect of such person or class of persons.
(2) Before making an order under sub-section (1), the State Government or the Central Government in the cases instituted by its central agency, as the case may be, shall have regard to the following matters, namely:—
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
(c) the public interest, generally.
The state government may, by general or special order, order an individual or group of individuals not to be removed from prison in prison or detention at any time on a particular matter. There are no orders that do not comply with Section 302 BNSS concerning a person or class of persons, whether before or after a state government order.
Before making an order under Section 303(1) BNSS, the State Government shall have regard to the following matters, namely-
- the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
- the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;
- the public interest, generally.
In Bhajan Vir Singh v. State of Haryana, 1991 Cr LJ 1311 (P&H) case, the High Court held that the authority given to the state government should be interpreted strictly. Orders under Section 268 (2) CrPC (S. 303(2) BNSS) must be self-contained and eloquent.
In Mohd Ansari V. Secretary, Govt of TN, 2003 Cr LJ 524 (Mad) case, the Madras High Court held that an order prohibiting a particular defendant from attending court must be upheld by a statement of the nature of the crime, the potential for obstruction, and reasons that reflect the public interest associated with the case.
S. 304 BNSS:
Officer in Charge of Prison to Abstain from Carrying out Order in Certain Contingencies:
Where the person in respect of whom an order is made under section 302—
(a) is by reason of sickness or infirmity unfit to be removed from the prison; or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) 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 in which he is confined or detained; or
(d) is a person to whom an order made by the State Government or the Central Government under section 303 applies,
the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining:
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).
If a person ordered under Section 302 BNSS cannot be taken out of prison due to sickness, infirmity, or is in pre-trial detention, or is detained before trial for the period that elapses before the period required for him to with the order and be returned to the correctional facility in which he is detained, or He is a person to whom an order made by the State Government or the Central Government under section 303 applies, then the Officer in Charge of Prison may abstain from carrying out order under Section 302 BNSS.
This section guides prison officers and establishes reasons for refraining from executing court orders made under Section 302 BNSS. “Remand or Pre-trial Detention” in Section 302(b) lays down that if the procedure is not in progress, the defendant may be reasonably transferred for further investigation, pre-trial, or trial purposes.
If a person in prison is under committal for trial or under remand pending trial or pending a preliminary investigation and he is within 25 km of the facility and he is required as witness in some other case, then the Officer in Charge of Prison shall not abstain from carrying out order under Section 302 BNSS.
S. 305 BNSS:
Prisoner to be Brought to Court in Custody:
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 and duly countersigned, where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there 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 him to be taken back to the prison in which he was confined or detained.
By the provisions of Section 305 BNSS, the officer in charge of the prison shall, after processing the order issued under Section 302 BNSS, formally co-sign as necessary. He shall cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order. He shall make provisions to cause the person named in the order to tbe kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he was confined or detained.
S. 306 BNSS:
Power to Issue Commission for Examination of Witness in Prison:
The provisions of this Chapter shall be without prejudice to the power of the Court to issue, under section 319, a commission for the examination, as a witness, of any person confined or detained in a prison; and the provisions of Part B of Chapter XXV shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examination on commission of any other person.
Section 306 BNSS grants a court the power to issue a commission for the examination of a prisoner or detained person as a witness in a case, rather than bringing them to court personally. This power allows for the examination of witnesses who are confined in a prison, and the procedures applicable to ordinary witness examination are adapted for the prison setting under Part B of Chapter XXV.
In Nain Singh V. Nain Singh, 1992 Cr LJ 2004 (J&K) : LNIND 1990 JNK 13 case, the Court observed that the section empowers the Court to grant a mandate to question a detained or imprisoned person if the Court considers that the person’s testimony is necessary for justice and his appearance cannot be get if there is no certain delay or cost, or the inconvenience, under the circumstances of the case, would be unreasonable.
Conclusion:
The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) relating to the attendance of persons confined or detained in prisons reflect the legislature’s effort to balance the demands of justice with the practical realities of prison administration and security. By providing a structured legal mechanism to secure the presence of such individuals before courts, the BNSS safeguards the principles of fair trial, equality before law, and access to justice, while also ensuring that proceedings are not unduly delayed. At the same time, it emphasizes that the rights of prisoners and detainees remain protected despite their confinement. In this way, the BNSS strengthens judicial efficiency and upholds constitutional guarantees, making the justice delivery system more effective and humane.