Introduction
Section 303 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides an exception to the power of a Criminal Court under Section 302 to require the attendance of prisoners.
It empowers the State Government or the Central Government, in specified circumstances, to direct that a particular person or class of persons should not be removed from the prison in which they are confined or detained. As long as such an order remains in force, an order under Section 302 requiring the prisoner’s attendance will not operate against that person or class of persons.
Statutory Basis
Section 303 consists of two sub-sections.
Under Section 303(1), the State Government or the Central Government may, by a general or special order, direct that a person or class of persons shall not be removed from the prison in which they are confined or detained.
Once such an order is in force, an order made under Section 302, whether made before or after the Government’s order, will have no effect in respect of that person or class of persons.
Power of the Government
The power under Section 303 may be exercised by:
- the State Government; or
- the Central Government, as the case may be.
The Government may issue either:
- a general order, applying to a class of persons; or
- a special order, applying to a particular person or particular circumstances.
The purpose is to prevent the removal of specified prisoners from the prison where they are confined or detained.
Grounds to Be Considered
Before making an order under Section 303(1), the Government must have regard to the matters specified in Section 303(2).
1. Nature of the Offence or Grounds of Detention
The Government must consider:
- the nature of the offence for which the person or class of persons has been confined in prison; or
- the grounds on which the person or class of persons has been detained.
This requires consideration of the circumstances that resulted in the person’s confinement or detention.
2. Likelihood of Disturbance of Public Order
The Government must consider whether allowing the person or class of persons to be removed from the prison is likely to result in a disturbance of public order.
This factor is particularly concerned with the possible consequences of removing the prisoner from the existing place of confinement.
3. Public Interest
The Government must also consider public interest generally.
This provides an additional consideration when deciding whether the person or class of persons should be excluded from the operation of Section 302.
Effect of the Government Order
The effect of an order under Section 303 is significant.
Once the Government’s order remains in force:
- the concerned person or class of persons cannot be removed from the prison pursuant to Section 302;
- an earlier order under Section 302 will not operate against them; and
- even an order under Section 302 made after the Government’s order will not operate against them for as long as the Government order remains in force.
Therefore, Section 303 operates as a statutory restriction on the practical operation of Section 302.
Procedure Under Section 303
The basic framework can be understood as follows:
- A person or class of persons is confined or detained in prison.
- The Government considers whether removal from the prison should be prevented.
- The Government considers the nature of the offence or grounds of detention.
- The Government considers the likelihood of disturbance of public order.
- The Government considers public interest generally.
- The State Government or Central Government may issue a general or special order directing that the person or class of persons shall not be removed from the prison.
- While the order remains in force, an order under Section 302 has no effect against the concerned person or class of persons.
Section 303 and Section 302
Section 302 gives a Criminal Court the power to require the attendance of a prisoner.
Section 303 provides a statutory mechanism by which the Government can exclude a person or class of persons from the operation of Section 302.
Thus, although a Criminal Court may otherwise have power to require a prisoner’s attendance, a valid Government order under Section 303 can prevent the removal of that prisoner from the prison.
Important Distinction
Court’s Power Under Section 302 and Government’s Power Under Section 303
Section 302 concerns the judicial power to require attendance of prisoners before a Criminal Court.
Section 303 concerns the executive power to prevent the removal of certain prisoners from the prison.
The two provisions operate together: Section 302 establishes the general power of the Court, while Section 303 provides an exception based on considerations such as the nature of the offence, public order and public interest.
BNSS and CrPC
Section 303 BNSS corresponds to Section 268 of the Code of Criminal Procedure, 1973.
The principal change under BNSS is that the heading and provision recognise the power of both the State Government and the Central Government. Under Section 268 CrPC, the corresponding power was expressly conferred upon the State Government.
Under BNSS, the Central Government may exercise this power in cases instituted by its central agency, while the State Government may exercise it in the applicable cases.
The underlying purpose remains substantially similar: preventing the removal of certain prisoners where considerations relating to the offence, public order or public interest justify such restriction.
Example
Suppose a prisoner is required to be brought before a Criminal Court under Section 302. The Government considers that removing the prisoner from the prison is likely to cause a serious disturbance of public order.
After considering the nature of the offence, the likelihood of disturbance of public order and the general public interest, the appropriate Government may issue an order under Section 303 directing that the prisoner shall not be removed from the prison.
While that order remains in force, the Section 302 order requiring the prisoner’s attendance will not have effect against that prisoner.
Important Points
- Section 303 deals with exclusion from the operation of Section 302.
- The power is available to the State Government or Central Government, as applicable.
- The Government may issue a general or special order.
- The order may concern a person or class of persons.
- The order prevents removal from the prison where the person is confined or detained.
- An order under Section 302 has no effect against the concerned person or class while the Section 303 order remains in force.
- The Government must consider the nature of the offence or grounds of detention.
- It must consider the likelihood of disturbance of public order.
- It must consider public interest generally.
- The Central Government’s power applies in cases instituted by its central agency.
- Section 303 corresponds to Section 268 CrPC.
Quick Revision
- Section: 303, BNSS, 2023
- Subject: Government power to exclude certain persons from Section 302
- Authorities: State Government or Central Government
- Form of order: General or special order
- Effect: Prevents removal of specified persons from prison
- Section affected: Section 302
- Factors: Nature of offence or grounds of detention, likelihood of disturbance of public order, and public interest
- Central Government: Applies in cases instituted by its central agency
- Corresponding CrPC provision: Section 268
- Related provision: Section 302 BNSS
ALSO READ: Section 302 – Power to require attendance of prisoners
Conclusion
Section 303 BNSS creates an important limitation on the production of prisoners under Section 302. It allows the appropriate Government to prevent the removal of specified prisoners where the nature of the offence or detention, possible disturbance of public order, or general public interest warrants such protection. The provision therefore balances the Court’s requirement for a prisoner’s attendance with broader concerns of security, public order and public interest.
