ATTENDANCE OF A WITNESS CONFINED OR DETAINED IN PRISON BY NIMESH ROHILLA @LEXCLIQ

Introduction:-

While talking about the court proceedings and serving justice to the person who needs that we always talk about strong evidence and witnesses. Sometimes calling a witness of a particular offence to come to the court at a specified time and place can be a little problematic. What if you ever get into a case where you have only one sole witness of that incident, that can prove you innocent but that witness is by some circumstances is confined or detained at some prison far away from the court complex. What will happen? Not every time the witness is a free man who is living a normal life . What if such a witness is confined in some prison. Do you have any way by which you can call up that witness to come to the court. The answer is yes, chapter 22 of the Criminal Procedure Code, 1973 deals with the procedure of attendance of the person who is confined or detained in prison.

Chapter 22 deals Attendance of a witness confined or detained in prison. This chapter deals with sections from 226 – 271. Let’s talk about them in detail.

Definition:-
According to section 226,
In this Chapter, –

(a) “Detained” includes detained under any law providing for preventive detention;

(b) “Person” includes, –

(i) Any place, which has been declared by the State Government, by general or special order, to be a subsidiary jail;

(ii) Any reformatory, Borstal institution or other institution of a like nature.

POWER TO REQUIRE ATTENDANCE OF PRISONERS (section 227)

(1) Wherever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court.

(a) That a person confined or detained in a prison should be brought before the court for answering to a charge of an offence, or for the purpose of any proceedings against him, or

(b) That it is necessary for the ends of justice to examine such person as a witness,

The court may make an order requiring the officer in charge of the prison to produce such person before the court for answering to the charge or for the purpose of such proceeding or as the case may be, for giving evidence.

(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not 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 such Magistrate is subordinate.

(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such a statement, decline to countersign the order.

Power of State Government to exclude certain persons from operation of section

State government have power to exclude such people who cannot be removed from prison just because if we move them from their prison cells that can cause harm to public peace and order.

(2). Before making an order under sub-section (1), the State Government shall have regard to the following matters, namely:

(a) The nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;

(b) The likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison;

(c) The public interest, generally

Well only such persons can be called up as witnesses who are not obstructed to appear before court under section 268. Because of the safeguard of public interest.

CAN AN OFFICER IN CHARGE OF PRISON ABSTAIN FROM CARRYING OUT ORDER ?(section 269)

Yes, An officer in charge of prison to abstain from carrying out order in certain contingencies – Where the person in respect of whom an order is made under section 267

(a) is by reason of sickness or infirmity unfit to be removed from the prison; or

(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or

(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he is confined or detained; or

(d) is a person to whom an order made by the State Government under section 268 applies, the officer in charge of the prison shall abstain from carrying out the Court’s order and shall send to the Court a statement of reasons for so abstaining :

Provided that the attendance of such a person is required for giving evidence at a place not more than twenty-five kilometres away from the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).

PRISONER TO BE BROUGHT TO COURT IN CUSTODY.

Subject to the provisions of Section 269, the officer in charge of the prison shall, upon delivery of an order made under sub-section (1) of Section 267 and duly countersigned where necessary, under sub-section (2) thereof, cause the person named in the order to be taken to the Court in which his attendance is required of that person, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has examined him/her or until the Court authorises him to be taken back to the prison in which he was confined or detained.

POWER TO ISSUE COMMISSION FOR EXAMINATION OF WITNESS IN PRISON

The provisions of this Chapter shall be without prejudice to the power of the Court to issue, under Section 284(When attendance of witness may be dispensed with and commission issued ) , a commission for the examination, as witness, of any person confined or detained in a prison; an the provisions of Part B of Chapter 23 shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examination on commission of any other person.

Case laws Related to chapter 22 of Crpc.

State Of Rajasthan vs Santosh Yadav on 22 February, 2005
Equivalent citations: 2005 CriLJ 1830, RLW 2005 (1) Raj 538, 2005 (2) WLC 1
[The Police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case and for this purpose production warrant under Section 267 CrPC. can be issued. The expression “other proceeding” used in Section 267(1) and “for the purpose of any proceedings” occurring in Section 267(1)(a) would include “investigation” as defined under Section 2(h) CrPC.]

Thus, that is how the procedure to call the attendance of the witness is confined or detained in prison.

Written by
Nimesh Rohilla

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