Attendance of Persons Confined in Prison

In one line

A court that needs a person who is in prison, either as an accused or as a witness, orders the officer in charge of the prison to produce him, and this Chapter says when that order must be obeyed and when it must not.

In exam wording: section 302 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Criminal Court, where it appears that a person confined or detained in a prison should be brought before it to answer a charge or for any proceeding against him, or that it is necessary for the ends of justice to examine him as a witness, to order the officer in charge of the prison to produce him.

Why the law has this at all

Because a prisoner cannot come to court by himself, and because letting every court order any prisoner out at will would be a security problem.

So the Code balances the two. The order is a judicial one, made by a Criminal Court in a proceeding before it. But a second class Magistrate's order needs countersigning by his Chief Judicial Magistrate, who may refuse. The Government may keep a named person or class of persons in, on stated grounds. And the officer in charge of the prison must himself refuse in four defined situations, giving the court his reasons.

Some words this chapter uses

Detained, by section 301(a), includes detained under any law providing for preventive detention. So a person held without trial under a preventive detention law is within the Chapter.

Prison, by section 301(b), includes any place declared by the State Government to be a subsidiary jail, and any reformatory, Borstal institution or other institution of a like nature.

Countersigning is the Chief Judicial Magistrate's endorsement, which a second class Magistrate's order needs before it has effect.

Section 302: the order

Sub-section (1). Whenever, in the course of an inquiry, trial or proceeding under the 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 him.

So there are two grounds and they are quite different: the prisoner as accused, and the prisoner as witness. Only the second carries the "necessary for the ends of justice" test.

Sub-section (2), the countersignature. Where the order 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 that Magistrate is subordinate.