Attendance of Persons Confined in Prison

Sub-section (3). Every order submitted for countersigning shall be accompanied by a statement of the facts which, in the Magistrate's opinion, render the order necessary, and the Chief Judicial Magistrate may, after considering that statement, decline to countersign.

Section 303: the Government's power to keep him in

Sub-section (1). The State Government, or the Central Government in cases instituted by its central agency, may at any time, by general or special order, direct that any person or class of persons shall not be removed from the prison in which they are confined or detained. So long as that order is in force, no order under section 302, whether made before or after it, has effect in respect of them.

Sub-section (2), the matters it must consider first.

(a) the nature of the offence for which, or the grounds on which, the person or class has been ordered to be confined or detained; (b) the likelihood of disturbance of public order if he or they are allowed to be removed; and (c) the public interest, generally.

Notice what section 303 does and does not do. It does not overrule the court on the merits of the case. It removes the physical production of a prisoner, on security grounds, and the court must then look to another way of taking his evidence, for example a commission under section 306 or audio-video electronic means.

Section 304: when the jailer must refuse

Where the person named in a section 302 order:

(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 time required for complying with the order and taking him back; or (d) is a person to whom a section 303 order 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 the reasons for so abstaining.

The proviso, and it is the detail most often missed. Where the attendance of the person is required for giving evidence at a place not more than twenty-five kilometres from the prison, the officer shall not abstain for the reason in clause (b).

So a prisoner who is himself on remand can still be produced as a witness if the court is within twenty-five kilometres.

Sections 305 and 306: production, and the alternative

Section 305. Subject to section 304, the officer in charge of the prison shall, on delivery of a section 302 order duly countersigned where necessary, cause the person named to be taken to the Court so as to be present 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 return.

Section 306, the commission. The provisions of this Chapter are 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 Part B of Chapter XXV applies to the examination on commission of such a person in the prison as it applies to any other person.

Section 306 is the safety valve, and its drafting is worth noticing: it does not create a new power. It says the production machinery in this Chapter takes nothing away from the ordinary commission power in section 319. So where section 303 or section 304 stops the prisoner coming, or the journey is not worth making, his evidence is taken where he is, on the same terms as anybody else's.

A worked example

A Sessions Court at Nagpur is trying a case in which a material witness, Suresh, is serving a sentence in Amravati Central Prison.

What does the Court do? It makes an order under section 302(1)(b) requiring the officer in charge to produce Suresh, being satisfied that his examination is necessary for the ends of justice.

Change the court. The order is made by a second class Magistrate. It cannot be forwarded to or acted upon by the jailer unless the Chief Judicial Magistrate countersigns it, section 302(2), and it must be sent up with a statement of the facts that make it necessary. The Chief Judicial Magistrate may decline, section 302(3).

Suresh is unwell and unfit to travel. The officer shall abstain from producing him and shall send the Court a statement of his reasons, section 304(a).

Suresh is not a convict but is himself on remand pending his own trial. Clause (b) would normally require the jailer to abstain. But the Court is eighteen kilometres away, so the proviso applies and he shall not abstain on that ground.

The State Government has ordered that Suresh not be removed, having regard to the nature of his offence, the likelihood of a disturbance of public order and the public interest. Then no section 302 order has effect, whether made before or after the Government's order, section 303(1). The Court's route is now a commission under section 306.

Suresh's sentence expires in six days and the journey and return would take ten. Clause (c) applies and the jailer abstains.

Suresh is produced. He is kept in custody in or near the Court until examined or until the Court authorises his return, section 305.

Distinctions

What this does NOT mean

Section 303 is not a power to stop a prosecution. It stops removal from prison, and section 306 leaves the Court a way of taking the evidence.

Section 304 is not a discretion. In each of the four contingencies the officer shall abstain, and shall report his reasons.

The twenty-five kilometre proviso does not cure the other three grounds. It operates only on clause (b), and only where the person is wanted for giving evidence.

And "prison" is wider than a jail. Section 301(b) includes a subsidiary jail, a reformatory, a Borstal institution and any institution of a like nature.

Quick revision

• 301: detained includes preventive detention; prison includes a subsidiary jail, reformatory, Borstal institution or like institution.
• 302(1): a Criminal Court may order production of a prisoner as an accused, or as a witness where necessary for the ends of justice.
• 302(2) and (3): a second class Magistrate's order needs the Chief Judicial Magistrate's countersignature, on a statement of the facts, and he may decline.
• 303: the State or Central Government may direct that a person or class not be removed, having regard to the nature of the offence, the likelihood of disturbance of public order and the public interest; no section 302 order then has effect.
• 304: the officer shall abstain and report reasons where the person is unfit through sickness or infirmity, is under committal, remand or pending preliminary investigation, is in custody expiring before the journey can be completed, or is covered by a section 303 order. Proviso: not for the second ground where evidence is to be given within twenty-five kilometres.
• 305: on a valid order, the prisoner is produced at the time stated and kept in custody in or near the Court until examined or released by the Court.
• 306: this Chapter is without prejudice to the power to issue a commission under section 319, and Part B of Chapter XXV applies to a prisoner's examination on commission as to anybody else's.

Test yourself

1. On what two grounds may a Court order a prisoner to be produced? That he should be brought before the Court to answer a charge or for proceedings against him; or that it is necessary for the ends of justice to examine him as a witness, section 302(1).

2. What is special about an order made by a second class Magistrate? It has no effect unless countersigned by the Chief Judicial Magistrate to whom he is subordinate, and it must be submitted with a statement of the facts rendering it necessary, which the Chief Judicial Magistrate may consider and decline to countersign, section 302(2) and (3).

3. On what matters must the Government have regard before ordering that a prisoner not be removed? The nature of the offence or the grounds of detention, the likelihood of disturbance of public order if he is removed, and the public interest generally, section 303(2).

4. Name the four situations in which the jailer must not carry out the order. Sickness or infirmity making him unfit to be removed; being under committal for trial or under remand pending trial or a preliminary investigation; being in custody for a period expiring before the order could be complied with and the return made; and being covered by a Government order under section 303.

5. What is the effect of the twenty-five kilometre proviso? Where the person's attendance is required for giving evidence at a place not more than twenty-five kilometres from the prison, the officer shall not abstain on the ground that he is under committal, remand or a pending preliminary investigation.

6. What can a Court do where a prisoner cannot be produced? Issue a commission for his examination as a witness under section 319. Section 306 preserves that power expressly, providing that this Chapter is without prejudice to it and that Part B of Chapter XXV applies to a prisoner as it does to anybody else.

7. Does "prison" mean only a jail? No. Section 301(b) includes any place declared a subsidiary jail by the State Government, and any reformatory, Borstal institution or other institution of a like nature.