Section 302 of BNSS, 2023 — Power to Require Attendance of Prisoners

Introduction

Section 302 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the power of a Criminal Court to require the attendance of a person confined or detained in prison.

The provision enables the Court to order the production of a prisoner when the person’s presence is necessary for answering a charge, participating in proceedings, or giving evidence as a witness.

Statutory Basis

Section 302 applies where, during an inquiry, trial or proceeding under the BNSS, it appears to a Criminal Court that a person confined or detained in prison should be brought before the Court.

The Court may issue an order requiring the officer in charge of the prison to produce that person before it.

When Can Attendance of a Prisoner Be Required?

Section 302 covers the following situations:

1. For Answering a Charge

The Court may require the attendance of a person confined or detained in prison when the person is required to appear before the Court for answering a charge of an offence.

2. For Proceedings Against the Person

The Court may also require the prisoner to be brought before it for the purpose of any proceeding against that person.

3. For Giving Evidence

A prisoner may be required to attend Court as a witness when the Court considers that the person’s examination is necessary for the ends of justice.

Therefore, Section 302 is not restricted to prisoners who are accused persons. A person confined in prison may also be brought before the Court to give evidence.

Power of the Criminal Court

The power under Section 302 is exercised by a Criminal Court during an inquiry, trial or proceeding.

The Court may direct the officer in charge of the prison to produce the concerned person before it.

The production must be connected with the purposes recognised by the section.

Special Rule for a Magistrate of the Second Class

Section 302 contains an additional safeguard where the order is made by a Magistrate of the second class.

Such an order cannot 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 the Magistrate is subordinate.

This requirement provides judicial supervision over orders issued by a second-class Magistrate.

Statement of Facts

Where an order is submitted for countersignature, it must be accompanied by a statement of the facts which, in the opinion of the Magistrate, make the order necessary.

The Chief Judicial Magistrate considers the statement before deciding whether to countersign the order.

The Chief Judicial Magistrate may decline to countersign the order.

Procedure Under Section 302

The procedure can be understood as follows:

1. An inquiry, trial or proceeding is pending before a Criminal Court.
2. The Court considers that a person confined or detained in prison is required before it.
3. The person may be required for answering a charge, participating in proceedings, or giving evidence.
4. The Court issues an order requiring the officer in charge of the prison to produce the person.
5. If the order is made by a Magistrate of the second class, it requires countersignature by the Chief Judicial Magistrate.
6. The order must be accompanied by a statement explaining the facts making the production necessary.
7. The Chief Judicial Magistrate may countersign the order or decline to do so.

Important Distinction

Prisoner as Accused and Prisoner as Witness

Section 302 covers both situations.

A prisoner can be brought before the Court:

• to answer a charge or participate in proceedings against the person; or
• to give evidence as a witness where the Court considers the examination necessary for the ends of justice.

Thus, the provision deals with the attendance of prisoners in judicial proceedings irrespective of whether they are being produced as accused persons or witnesses.

Relationship with Other Provisions

Section 302 should be read along with the provisions that follow it concerning circumstances in which a person confined or detained in prison may or may not be removed from the prison.

The power to require attendance under Section 302 therefore operates within the safeguards and restrictions provided by the subsequent provisions of the Chapter.

BNSS and CrPC

Section 302 BNSS substantially corresponds to Section 267 of the Code of Criminal Procedure, 1973.

The basic procedural mechanism has been retained: a Criminal Court can require the production of a person confined or detained in prison when the person’s presence is necessary for criminal proceedings or for giving evidence.

Example

A person is confined in prison while a criminal proceeding is pending before a Criminal Court. The Court requires the person’s presence to answer the charge. The Court may issue an order under Section 302 requiring the officer in charge of the prison to produce the person before it.

Similarly, if a prisoner has relevant information concerning a case and the Court considers examination of that person necessary in the interests of justice, the prisoner may be required to attend as a witness.

Important Points

• Section 302 deals with the attendance of prisoners before Criminal Courts.
• The provision applies during an inquiry, trial or proceeding.
• A prisoner may be produced for answering a charge.
• A prisoner may be produced for participating in proceedings against the person.
• A prisoner may also be produced as a witness.
• The order is directed to the officer in charge of the prison.
• An order made by a Magistrate of the second class requires countersignature by the Chief Judicial Magistrate.
• A statement of facts must accompany an order submitted for countersignature.
• The Chief Judicial Magistrate may decline to countersign the order.
• Section 302 substantially corresponds to Section 267 CrPC.

Quick Revision

• Section: 302, BNSS, 2023
• Subject: Power to require attendance of prisoners
• Authority: Criminal Court
• Person concerned: A person confined or detained in prison
• Purpose: Answering a charge, participating in proceedings or giving evidence
• Prison authority: Officer in charge of the prison
• Special safeguard: Countersignature by the Chief Judicial Magistrate for an order made by a second-class Magistrate
• Statement required: Statement of facts explaining the necessity of the order
• Corresponding CrPC provision: Section 267

ALSO READ: Section 301 – Definitions

Conclusion

Section 302 BNSS provides a mechanism for securing the attendance of prisoners before Criminal Courts when their presence is necessary for criminal proceedings or for giving evidence. At the same time, the requirement of countersignature for orders made by a Magistrate of the second class provides an additional layer of judicial supervision.