Section 305 of BNSS, 2023 — Prisoner to be Brought to Court in Custody

Introduction

Section 305 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed after a valid order has been made for the attendance of a prisoner before a Court.

The provision requires the officer in charge of the prison to bring the person named in the order before the concerned Court and keep that person in custody until the person has been examined or the Court authorises their return to prison.

Statutory Basis

Section 305 operates subject to Section 304.

When an order under Section 302(1) requiring the attendance of a prisoner is delivered to the officer in charge of the prison, and the order has been duly countersigned where such countersignature is required under Section 302(2), the prison officer must arrange for the person named in the order to be taken to the Court.

The person must be present at the time specified in the order.

Duty of the Officer in Charge of the Prison

Section 305 imposes a duty on the officer in charge of the prison.

Upon receiving a valid order, the officer must:

• cause the person named in the order to be taken to the concerned Court;
• ensure that the person is present at the time mentioned in the order;
• keep the person in custody in or near the Court; and
• continue such custody until the person has been examined or the Court authorises the person’s return to prison.

The provision therefore ensures that a prisoner’s attendance before the Court is properly secured.

Requirement of a Valid Court Order

The duty under Section 305 arises only when the officer receives an order made under Section 302(1).

Where the order is one that requires countersignature under Section 302(2), it must also be duly countersigned.

Therefore, the following requirements must be satisfied:

1. There must be an order under Section 302(1).
2. The order must have been delivered to the officer in charge of the prison.
3. Where required, the order must have been countersigned under Section 302(2).
4. The officer must then arrange for the prisoner to be brought before the Court.

Presence at the Specified Time

The prisoner must be brought before the Court so as to be present at the time mentioned in the order.

This ensures that the Court’s requirement for the prisoner’s attendance is complied with at the specified time rather than merely arranging production at an unspecified time.

Custody During Court Proceedings

Section 305 does not provide for the automatic release of the prisoner merely because the prisoner has been brought to Court.

The officer in charge must cause the prisoner to be kept in custody in or near the Court.

The custody continues until either:

• the prisoner has been examined; or
• the Court authorises the prisoner to be taken back to the prison.

Thus, the prisoner remains under lawful custody during the period for which attendance before the Court is required.

Return to Prison

After the prisoner has been examined, the person does not necessarily have to remain at the Court.

The prisoner may be taken back to the prison in which the person was confined or detained once the relevant examination has been completed.

The return may also take place when the Court authorises the person to be taken back to prison.

Relationship with Section 304

Section 305 expressly begins with the words “Subject to the provisions of section 304.”

This means that Section 305 cannot be applied independently of the restrictions contained in Section 304.

Section 304 identifies circumstances in which the officer in charge of the prison must abstain from carrying out the Court’s order.

Therefore:

• Section 302 provides the power to require a prisoner’s attendance.
• Section 303 permits the Government to exclude certain persons from the operation of Section 302.
• Section 304 specifies circumstances in which the prison officer must abstain from executing the order.
• Section 305 provides for the actual production and custody of the prisoner when the order can lawfully be carried out.

Procedure Under Section 305

The procedure can be understood in the following steps:

1. The Court makes an order under Section 302(1) requiring the attendance of a prisoner.
2. Where necessary, the order is countersigned under Section 302(2).
3. The order is delivered to the officer in charge of the prison.
4. Subject to Section 304, the officer arranges for the prisoner to be taken to the concerned Court.
5. The prisoner is required to be present at the time specified in the order.
6. The prisoner is kept in custody in or near the Court.
7. The custody continues until the prisoner has been examined or the Court authorises the person’s return to prison.
8. The prisoner may then be taken back to the prison in which the person was confined or detained.

Example

Suppose a person is confined in prison and a Criminal Court requires the person’s attendance for examination as a witness. The Court makes an order under Section 302 and, where necessary, obtains the required countersignature.

Once the order is delivered to the prison officer and no restriction under Section 304 prevents its execution, the officer must arrange for the prisoner to be brought to Court at the specified time.

The prisoner must remain in custody in or near the Court until the examination is completed or the Court authorises the person’s return to prison.

Important Distinction

Production of Prisoner and Release of Prisoner

Section 305 deals with production and continued custody, not release.

Bringing a prisoner before the Court does not by itself terminate the person’s existing custody. The person remains in custody until examination is completed or the Court authorises return to prison.

Section 302 and Section 305

Section 302 concerns the Court’s power to require attendance.

Section 305 concerns the execution of that order by the prison authorities and the custody of the prisoner while present before the Court.

BNSS and CrPC

Section 305 BNSS corresponds to Section 270 of the Code of Criminal Procedure, 1973.

The provision substantially continues the earlier CrPC position without a major substantive change. The basic procedure remains that, subject to the statutory restrictions, the prison officer must bring the prisoner before the Court pursuant to a valid production order and keep the prisoner in custody until examination or authorisation for return to prison.

Important Points

• Section 305 deals with bringing a prisoner to Court in custody.
• It operates subject to Section 304.
• The relevant order is an order made under Section 302(1).
• Countersignature is required where Section 302(2) makes it necessary.
• The officer in charge of the prison is responsible for producing the prisoner.
• The prisoner must be present at the time specified in the order.
• The prisoner must be kept in custody in or near the Court.
• Custody continues until the prisoner has been examined or the Court authorises return to prison.
• The provision corresponds to Section 270 CrPC.

Quick Revision

• Section: 305, BNSS, 2023
• Subject: Prisoner to be brought to Court in custody
• Authority responsible: Officer in charge of the prison
• Order: Section 302(1)
• Countersignature: Required where applicable under Section 302(2)
• Limitation: Subject to Section 304
• Place: Court where attendance is required
• Custody: In or near the Court
• Duration: Until examination or Court-authorised return
• Corresponding CrPC provision: Section 270
• Related provisions: Sections 302, 303 and 304 BNSS

ALSO READ: Section 304 – Officer in charge of prison to abstain from carrying out order in certain contingencies

Conclusion

Section 305 provides the practical mechanism for implementing a Court’s order requiring the attendance of a prisoner. Once the statutory requirements are satisfied and Section 304 does not prevent execution, the prison officer must bring the prisoner before the Court and maintain custody until the examination is completed or the Court authorises return to prison.