Introduction
Section 306 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the examination of a person confined or detained in prison as a witness through a commission.
- Introduction
- Statutory Basis
- Meaning of the Provision
- Commission for Examination of a Prisoner
- Power Under Section 319
- Examination in Prison
- Section 306 Does Not Limit the Court’s Power
- Relationship with Sections 302 to 305
- Procedure in Simple Terms
- Example
- Important Distinction
- BNSS and CrPC
- Important BNSS Provisions
- Quick Revision
- Conclusion
The provision makes it clear that the provisions relating to the attendance of prisoners before Courts do not take away the Court’s separate power to issue a commission for examining a prisoner as a witness.
Statutory Basis
Section 306 provides that the provisions of Chapter XXIV 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.
It further provides that the provisions of Part B of Chapter XXV apply to the examination on commission of such a person in prison in the same manner as they apply to the examination on commission of any other person.
Meaning of the Provision
Section 306 creates a connection between two procedural mechanisms:
- Production of a prisoner before the Court under the provisions dealing with attendance of prisoners; and
- Examination of a prisoner through a commission under Section 319.
The Court is therefore not restricted to physically bringing a prisoner before it whenever the prisoner is required to give evidence.
Where appropriate, the Court can use the procedure of examination on commission.
Commission for Examination of a Prisoner
A commission is a formal authority issued by a Court for the examination of a witness in accordance with the procedure prescribed by law.
Under Section 306, the Court may issue such a commission for the examination of a person who is:
- confined in a prison; or
- detained in a prison.
The person is examined as a witness.
The provision therefore provides a procedural alternative to physically bringing the prisoner before the Court.
Power Under Section 319
Section 306 specifically refers to Section 319 BNSS.
Section 319 deals with circumstances in which the attendance of a witness may be dispensed with and a commission may be issued for the examination of that witness.
Therefore, where the requirements of Section 319 are satisfied, a prisoner may be examined through a commission rather than being physically brought before the Court.
Examination in Prison
Where a commission is issued for examining a prisoner, the examination takes place in the prison in accordance with the applicable procedure.
The examination on commission of the prisoner is governed by the provisions relating to examination on commission contained in Part B of Chapter XXV.
The same procedural framework that applies to examination on commission of other witnesses applies to the examination of the prisoner.
Section 306 Does Not Limit the Court’s Power
The expression “without prejudice to” is important.
It means that the provisions of Chapter XXIV concerning prisoners do not take away or restrict the Court’s power to issue a commission under Section 319.
Thus, the existence of provisions allowing a Court to require a prisoner’s attendance does not prevent the Court from choosing the commission procedure where legally appropriate.
Relationship with Sections 302 to 305
Section 306 follows the provisions dealing with the physical attendance of prisoners.
Section 302
Provides the Court with the power to require the attendance of a prisoner.
Section 303
Allows the Central Government or State Government, as applicable, to exclude certain persons from the operation of Section 302.
Section 304
Requires the officer in charge of the prison to abstain from carrying out an order in specified contingencies.
Section 305
Deals with bringing the prisoner to Court in custody when the production order can be carried out.
Section 306
Provides that, instead of relying solely on physical production, the Court may issue a commission for examination of the prisoner as a witness under Section 319.
Procedure in Simple Terms
The operation of Section 306 can be understood as follows:
- A person confined or detained in prison is required as a witness.
- The Court considers whether the witness should be physically brought before it or examined through a commission.
- Where the requirements of Section 319 are satisfied, the Court may issue a commission.
- The prisoner is examined in the prison pursuant to the commission.
- The examination is conducted according to the provisions applicable to examination on commission under Part B of Chapter XXV.
Example
Suppose a prisoner possesses material information concerning a criminal case and is required to give evidence.
Instead of requiring the prisoner to be physically brought to Court, the Court may, where the requirements of Section 319 are satisfied, issue a commission for examination of the prisoner.
The prisoner can then be examined in the prison in accordance with the statutory procedure applicable to examination on commission.
Important Distinction
Physical Production and Examination on Commission
Physical production involves bringing the prisoner before the Court under the provisions governing attendance of prisoners.
Examination on commission allows the prisoner to be examined as a witness without necessarily being physically brought before the Court.
Section 306 preserves the latter option.
BNSS and CrPC
Section 306 BNSS corresponds to Section 271 of the Code of Criminal Procedure, 1973.
There is no significant substantive change in the provision. The BNSS substantially retains the earlier rule that the provisions relating to prisoners do not affect the Court’s power to issue a commission for examining a prisoner as a witness.
The corresponding provision under the CrPC was Section 271, while the BNSS provision is Section 306.
Important BNSS Provisions
- Section 302: Power to require attendance of prisoners.
- Section 303: Power of the State Government or Central Government to exclude certain persons from Section 302.
- Section 304: Circumstances requiring the prison officer to abstain from carrying out an order.
- Section 305: Bringing a prisoner to Court in custody.
- Section 306: Commission for examination of a prisoner as a witness.
- Section 319: Circumstances in which attendance of a witness may be dispensed with and a commission issued.
Quick Revision
- Section: 306, BNSS, 2023
- Subject: Commission for examination of witness in prison
- Person concerned: Person confined or detained in prison
- Purpose: Examination as a witness
- Relevant power: Court’s power to issue a commission
- Commission issued under: Section 319 BNSS
- Place of examination: Prison
- Applicable procedure: Part B of Chapter XXV
- Nature of provision: Preserves the Court’s power to examine a prisoner through commission
- Corresponding CrPC provision: Section 271
- Major change from CrPC: No significant substantive change
ALSO READ: Section 305 – Prisoner to be brought to Court in custody
Conclusion
Section 306 BNSS ensures that the provisions governing the attendance of prisoners do not restrict the Court’s power to examine a prisoner through a commission. Where the requirements for issuing a commission are satisfied, the prisoner may be examined in the prison according to the procedure applicable to examination on commission of other witnesses.
