Justice Beyond Bars - greaterkashmir

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a landmark legislation that revamps the procedural framework governing criminal justice in India. Among its many innovations, the BNSS dedicates a specific chapter to regulating the attendance of individuals confined or detained in prisons during judicial proceedings. This subject holds paramount importance as it touches upon the delicate interplay between ensuring justice, protecting individual rights, maintaining public order, and upholding the integrity of the prison system.

The attendance of prisoners is often necessitated during criminal inquiries, trials, or proceedings. Recognising this, the BNSS provides a detailed legal structure under Sections 301 to 306 to guide the courts, prison authorities, and governments in managing such situations effectively. The provisions aim to ensure that prisoners can be produced before the courts when required, without compromising the security of the prison system or risking public safety. At the same time, the law respects the procedural rights of prisoners, offering safeguards against unwarranted or unnecessary transportation from their places of detention.

The BNSS defines critical terms such as “prison” and “detained” to avoid ambiguity and lays down comprehensive procedures for courts to summon prisoners. It empowers judicial officers to order their attendance, stipulates the responsibilities of prison authorities, and grants the State and Central Governments discretionary powers to restrict prisoner movements in exceptional circumstances. Furthermore, the BNSS integrates flexibility for alternate arrangements like commission-based examination within prisons, thereby accommodating special cases. This article delves into procedural mechanisms enshrined in Sections 301 to 306 of the BNSS, 2023. It examines the balance the law seeks to achieve between judicial efficiency, individual rights, and public security. By unpacking these provisions, the article highlights how the BNSS strengthens the administration of justice while safeguarding societal and institutional interests.

What does the term “detained” include?

The term “detained” includes detention under any law providing for preventive detention.

What is included in the definition of “prison”?

“Prison” includes:

Any place declared by the State Government as a subsidiary jail by general or special order.
Reformatory, Borstal institutions, or other similar institutions.

When can a Criminal Court require the attendance of a prisoner?

A Criminal Court may require a prisoner’s attendance if:

The person is needed to answer a charge of an offence or for proceedings against them.
The person’s examination as a witness is necessary for the ends of justice.

What must a Magistrate of the second class do before forwarding an order requiring a prisoner’s attendance?

The Magistrate must have the order countersigned by the Chief Judicial Magistrate to whom they are subordinate.

What must accompany an order submitted for countersigning?

The order must be accompanied by a statement of facts justifying the necessity of the order.

Can the Chief Judicial Magistrate refuse to countersign the order?

Yes, the Chief Judicial Magistrate may decline to countersign the order after considering the statement of facts.

What power does the State or Central Government have regarding the removal of certain persons from prison?

The State or Central Government may direct that certain persons or classes of persons should not be removed from prison.

What factors must the Government consider before issuing such a direction?

The Government must consider:

The nature of the offence or grounds for confinement/detention.
The likelihood of public order disturbance if the person is removed.
The public interest, generally.

Under what conditions must the officer in charge of a prison abstain from carrying out a Court order for a prisoner’s attendance?

The officer must abstain if:

The person is unfit due to sickness or infirmity.
The person is under committal for trial, remand, or pending a preliminary investigation.
The person’s custody period would expire before the completion of the order.
The person is subject to an order by the State or Central Government.

Is there an exception for short-distance attendance for giving evidence?

Yes, if the distance is not more than 25 kilometers, the officer cannot abstain the person even if he/she is under committal for trial, remand, or pending a preliminary investigation.

What is the responsibility of the officer in charge of the prison upon receiving a valid order?

The officer must:

Ensure the prisoner is taken to the Court at the specified time.
Keep the prisoner in custody in or near the Court until their examination or until the Court authorises their return to prison.

Does the Chapter on attendance of persons confined or detained in prisons affect the court’s power to issue a commission for examining a witness in prison?

No, the Chapter does not prejudice the Court’s power to issue a commission for examining a witness in prison.

The provisions governing the attendance of persons confined or detained in prisons under the Bharatiya Nagarik Suraksha Sanhita, 2023, reflect a nuanced understanding of the complexities involved in the criminal justice system. These provisions do more than merely prescribe the logistics of prisoner attendance; they create a framework that harmonises the sometimes-conflicting demands of judicial expediency, prisoner rights, and public safety. The BNSS empowers courts with the authority to summon prisoners for legitimate judicial purposes, such as answering charges or giving evidence, while imposing procedural checks to prevent misuse. The requirement for countersignature by superior judicial officers, the inclusion of detailed justifications for such orders, and the limitations placed on certain categories of prisoners underscore the law’s commitment to procedural fairness and transparency. At the same time, the BNSS acknowledges the potential risks associated with the removal of prisoners from detention facilities, granting the State and Central Governments the power to intervene when public order or national security is at stake.

The role of prison authorities, under the BNSS, adds another layer of accountability and practicality. By allowing officers in charge of prisons to abstain from complying with court orders under specific conditions, the BNSS addresses logistical challenges and ensures that court directives do not inadvertently compromise the well-being of detainees or the operational efficiency of the prison system. The option to conduct in-prison examinations through commissions further demonstrates the pragmatic approach to balancing justice and security under the BNSS.

In conclusion, the BNSS, 2023, establishes a robust and forward-thinking framework for managing the attendance of prisoners during judicial proceedings. It reflects an overarching vision of a justice system that is not only fair and efficient but also sensitive to the broader implications of prisoner movement on public safety and institutional security. By integrating clarity, accountability, and flexibility into its provisions, the BNSS strengthens India’s criminal justice system, ensuring it remains responsive to the needs of both individuals and society at large. This framework stands as a testament to the evolving nature of law in addressing contemporary challenges while upholding the principles of justice and equity in the country.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.