What are the purpose for which and the procedure for requiring the attendance of a prisoner before a Magistrate?
About the Author
Adv.Alexy Joy is a Editor of ljrfvoice.com. member of the munsiff magistrate exam training program.Completed LLB from Govt Law College Thrissur. Currently pursuing LLM from CUSAT
Introduction
The Code of Criminal Procedure, 1973 which will be rechristened as The Bharatiya Nagarik Suraksha Sanhita, 2023. Hereinafter referred as CrPC and BNSS respectively. The BNSS also aims to establish a justice system that has a greater vitesse and efficiency that can tackles the ongoing challenges of complex procedures, case pendency, low conviction rates, lack of technology adoption, and delayed justice delivery. Above all, the greatest objective of the BNSS is the suraksha (protection) of citizens from the unfair exploitation of the procedure possible through the existing loopholes in the current criminal procedure regime. The BNSS mostly preserves the provisions of the existing CrPC, however, it aims to simplify the criminal procedure, reduce trial duration, enhance investigatory powers of the police, implement timelines for procedure, etc. Under the Chapter XXIV of Bharatiya Nagarik Suraksha Sanhita, 2023 , the purposes and procedures for requiring attendance of a prisoner before a magistrate are outlined below:
Purposes:
Purpose for Requiring Attendance:
The attendance of a prisoner before a magistrate can be required for several reasons, such as:
Evidence or Examination: If a prisoner is needed as a witness in any judicial proceeding, they may be summoned under Section 302 of BNSS.
Trial or Inquiry: A prisoner may be brought before a court to stand trial or to be involved in a judicial inquiry into any offenses.
Recording Confession or Statement: When a prisoner is to make a confession or statement before a magistrate in accordance with law, they can be brought before the court.
Execution of Warrant or Sentence: In cases where the court issues a warrant or requires the execution of a sentence, the prisoner may be required to appear before a magistrate. It is also includes.
1. Remand :To authorize continued detention or change in custody status.
2. Trial : To conduct trial proceedings.
3. Interrogation : To facilitate questioning and investigation.
4. Identification: For witness identification or testimony.
5. Testimony: To receive testimony or statements.
6. Bail : For bail hearings.
7. Sentencing: For sentencing.
According to Section 302 of Bharatiya Nagarik Suraksha Sanhita,Procedure:
Which provides Power to Require Attendance of Prisoners ,
Section 302 (1) of BNSS provides that whenever, in the course of an inquiry, trial or proceeding under this Sanhita, it appears to a Criminal Court: 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 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 a person before the Court answering the charge or for the purpose of such proceeding or for giving evidence. Section 302 (2) of BNSS provides that 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) of BNSS provides that 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.
This was earlier contained in Section 267 of CrPC.
This is Section 167 of the Code of Criminal Procedure (CrPC), 1973, which deals with the procedure for detention of an accused person beyond 24 hours. If investigation cannot be completed within 24 hours, the police officer shall forward the accused to the nearest Magistrate. The Magistrate may authorize detention for up to 15 days, and extend it up to 90 days (or 60 days for lesser offenses).The accused shall be produced before the Magistrate in person or through audio-video means. The Magistrate shall record reasons for authorizing detention. If investigation is not concluded within 6 months, the Magistrate may stop further investigation. Detention beyond 24 hours requires Magistrate’s authorization. Maximum detention period: 90 days (or 60 days for lesser offenses). Accused must be produced before Magistrate. Magistrate shall record reasons for detention. Investigation must be concluded within 6 months.
According to Section 303 (1) of BNSS provides that Exclusions of Certain Persons from Above ,
Section 303 (1) of BNSS provides that the State Government or Central Government may by general or special order direct that any person or class of persons shall not be removed from prison as long as the order remains in force. No order made under Section 302 whether before or after the order of the State Government or Central Government shall have an effect in respect of such persons or class of persons. Before making an order under Sub section (1) the State Government or Central Government in cases instituted by its central agency shall have regard to following: 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. This was earlier contained in Section 268 of CrPC.
Section 304 of BNSS provides that Officer In Charge of Prison can Abstain from Carrying Order
Section 304 of BNSS provides that where the person in respect of whom an order is made under section 302: Is by reason of sickness or infirmity unfit to be removed from the prison; or Is under committal for trial or under remand pending trial or pending a preliminary investigation; or 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 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: Proviso to Section 304 of BNSS provides that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometers distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b). This was earlier contained in Section 269 of CrPC.
Section 305 of BNSS provides Prisoner to be Brought to Court in Custody
Section 305 of BNSS provides that subject to the provisions of Section 304 the officer in charge of police station 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 and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorizes him to be taken back to the prison in which he was confined or detained. This was earlier contained in Section 270 of CrPC.
Section 306 of BNSS provides that the Power to Issue Commission
Section 306 of BNSS provides that 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. This was earlier contained in Section 271 of CrPC.
According to State of Maharashtra v. Tansen Pandit (1977), in this case key issue involved that The necessity of producing a prisoner for trial under Section 267 of the CrPC. In this case The court held that the attendance of a prisoner can only be compelled when absolutely necessary for the administration of justice. If the purpose can be achieved by other means, such as video conferencing or written statements, the court may dispense with physical appearance. This case established that the court has discretion to decide whether personal appearance is needed, focusing on security concerns and convenience.
In Sunil Batra v. Delhi Administration (1978), Key Issue in this case was Rights of prisoners, including the right to be treated with dignity while being produced in court. The Supreme Court held that prisoners retain their basic rights and should not be subjected to degrading or humiliating treatment when attending court. The court stressed that proper procedures under the CrPC must be followed when bringing a prisoner for judicial proceedings. This case underscores the protection of human rights in the process of requiring a prisoner’s attendance, ensuring that court orders under Sections 267-271 respect the dignity of the prisoner.
Conclusion
In conclusion, the BNSS provides a well-defined framework for requiring the attendance of prisoners before a magistrate to ensure the smooth administration of justice. Whether for trial, giving evidence, or recording a statement, the law outlines specific purposes and a procedural mechanism through Section 301 to Section 306 of BNSS. Chapter XXIV provides for provisions for attendance of persons confined or detained in prison. It consists of provisions from Section 301 to Section 306 of BNSS.. This ensures that prisoners can participate in judicial proceedings while maintaining proper security and legal order. In modern contexts, alternative methods like video conferencing may also be employed, reflecting the system’s adaptability to contemporary needs and technological advancements.
