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Published : June 19, 2017 | Author : Mudit Bohara
Category : Miscellaneous | Total Views : 779 | Unrated

Mudit Bohara


Attendance of Persons Confined or Detained In Prisons Under The Code of Criminal Procedure



The accused in India are given certain rights, the most basic of which are found in the Indian Constitution. The broad theory behind these rights is that the government has hugemeans available to it for the prosecution of entities, and individuals therefore are eligible to some protection from misuse of those powers by the government. An accused has certain rights during the course of any investigation; enquiry or trial of an offence with which he is accused and he should be protected against illogical or illegal arrest. Police have a wide powers deliberated on them to arrest any person under Cognizable offence without going to magistrate, so Court should be careful to see that theses powers are not abused for lightly used for personal benefits. No arrest can be made on mere doubt or information. Even private person cannot follow and arrest a person on the statement of another person, however impeachable it is.


Chapter XXII of the Code of Criminal Procedure addresses six important sections that were introduced in the Code for the purpose of safeguarding the presence of people restrained and detained in prisons before the Criminal Courts. It lays down preciserequirements and circumstances under which such persons are to be brought before the Courts. It appears that these sections have been incorporated having record to the provisions of the Prisoners (Attendance in Courts) Act, 1991 which also makes provision for the production of persons confined and detained in prisons.

Objectives of The Study:-

The objectives of the study were to examine the following,
Ø To check the how the law under the Code of Criminal Procedure deals with the Attendance of Persons Confined or Detained in Prisons.


The limitations of the study are,
Ø Sample size of the study is too small as the scope of research is restricted only to the roles and functions of the code of criminal procedure code in India.
Ø The scope of the research study is also very narrow that the sources from which information is been collected are mostly from secondary sources due to time constraints

Research Methodology:-

The methodology adopted for the study is doctrinaire. The approach is analytical and not empirical. Elaborate explanations and discussions are provided relating to “Attendance of Persons Confined or Detained in Prisons under The Code of Criminal Procedure”.

Review of Literature or Sources of Data:-

The primary sources of the study include relevant original text of legislations and rules and Secondary resources include text books of noted authors, journals, periodicals, articles and newspapers. The tertiary sources in the form of websites have been browsed to get the information and literature on the topic of the study at national level

Scheme of The Study:-
The work is arranged into 7 chapters. Each chapter explained in detail in a different way. Chapter 1: Section 266, Chapter 2: Section 267, Chapter 3: Section 268, Chapter 4: Section 269, Chapter 5: Section 270, Chapter 5: Section 271 &Chapter 7: Conclusion

i. Section 266:- Definitions

Under this Section terms such as ‘Detained’ and ‘Prison’ have beenelucidated upon. The term ‘Detained’ includes any detained under any law providing for preventive detention. It does not have a narrow scope and thus individuals or persons detained under Acts such as the Preventive Detention Act, Maintenance of Internal Security etc.

(1) “prison” means any jail or place used permanently or temporarily under the general or special orders of a State Gov­ernment for the detention of prisoners, and includes all lands and buildings appurtenant thereto, but does not include—
(b)any place specially appointed by the State Government under section 541 of the Code of Criminal Procedure, 1882 (10 of 1882); or
(c)any place which has been declared by the State Government by general or special order, to be a subsidiary jail.[1]

ii Section 267:- Power To Require Attendance of Prisoners

This section states that during the course of an inquiry, trial or other proceeding under this Code, if it appears to a Criminal Court, that a person confined or detained in a prison should be brought before the Court for respondingto a charge of an offence, or for the purpose of any proceedings against him, orfor it being essentialto meet 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.

The explanation to this section empowers the Courts to direct the Officer in charge to bring forth a detenue before it, if the Court believes that it is prudent to do so for several reasons such as answering to a charge of an offence or for the purpose of conducting any proceedings against him or to examine him as a witness to meet the interests of justice.


Mohd Daud vs. Superintendent, District Jail, Moradabad

[2] it was held that, where an accused was arrested and detained in Maharashtra under the Narcotic Drugs and Psychotropic Substances Act, 1985 [NDPS Act], brought to Moradabad in UP in connection with another case, it was held that after the end of the trial at Moradabad, he has to be conveyed back to the prison from where he was brought and it cannot be said that his confinement under NDPS Act, in Maharashtra automatically came to an end or became non-existent on his transfer to Moradabad.

In the case of

Bharti Sachdeva vs. State of Rajasthan

[3], a person detained in jail in Indore, was brought to Kota under a production warrant for investigation for another offence, it was held to be illegal as the production warrant could only be issued for enquiry, trail or other proceedings or for answering charges or for being examined as witness and not for investigation of another offence.

iii Section 268:- Power of State Government To Exclude Certain Persons From Operation of Section 267

The State Government may, at any time having regard to certain matters, by general or special order, may direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained and thereupon, so long as the order remains to force, no order made under section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons. Further, before making an order, the State Government shall have regard to matters such as 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, the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison, the public interest, generally.

This section expands on the fact that the State Government can stop the process of the order made under the preceding section and sets the various conditions & situations that the Government should keep in mind before eradicating specific persons from the operation of such an order. The power conferred on the State Government must be interpreted strictly. Such an order should be self-contained and not a speaking order[4].

No person in respect of whom an order has been passed under section 268 operates can be detained in jail without a specific order of detention being passed against him by a Competent Court[5]. An order restricting certain under trials from attending the Court must be supported by a statement of reasons showing the nature of offence, the likelihood of disturbance and public interest involved in the cases[6].

Iv Section 269:- Officer In Charge Of Prison To Abstain From Carrying Out Order In Certain Contingencies

This section lays down that ,where the person in respect of whom an order is made under section 267,is by reason of illness or ailment unfit to be removed from the prison oris under interment for trial or under remand pending trial or pending a preliminary investigation oris in custody for a period which would expire before the expiration of the time required for obeying with the order and for taking him back to the prison in which he is detained oris a person to whom an order made by the State Government under section 268 applies, the officer in charge of the prison shall withdraw from carrying out the Court’s order and shall send to the Court, a statement of reasons for so abstaining.

However there also exist certain requisites such as that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distance from the prison, the officer in charge of the prison shall not so abstain for the reasons mentioned above. The explanation to this section provides guidance to the Officer-in charge of the prison and tackles the justifications under which he should take a call to abstain or not from carrying out order of the Court so provided under Section 267.

An individual accused of murder at Faridabad, while on bail, committed another murder in Lucknow, got cancelled his bail and got himself confined in Faridabad Jail pending committal and was under remand under section 309 of the Code. He opposed the competency of the Magistrate at Lucknow to deliver an order under section 267, when he was previously sequestered ina jail pending committal. It was held that the simple fact that the committal proceedings were impending in respect of the same accused in another place, did not take away the jurisdiction from the Magistrate at Lucknow which is a subsequent place of crime, to pass an order under section 267 of the Code and such an order of the Magistrate at Lucknow did not suffer from any infirmity[7].

V Section 270:- Prisoner To Be Brought To Court In Custody

Subject to the provisions of section 269, the officer in charge of the prison shall, upon transfer of an order made under section 267 and duly countersigned, where necessary, and source the person named in the order to be taken to the Court in which his attendance is required, 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 been scrutinised or until the Court approves him to be taken back to the prison in which he was confined or detained.

Vi Section 271:-Power To Issue Commission For Examination of Witness In Prison

The provisions of this Chapter shall be without bias to the power of the Court to issue, under section 284, a commission for the examination, as a witness, of any person restricted or detained in a prison; and the provisions of Part B of ChapterXXIIIshall 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.

The section provides that the Court can issue assignment for the examination of the person detained or confined in prison, if the Court thinks that the evidence of such person is necessary for the ends of justice and that his attendance cannot be obtained without any delay, expense or inconvenience which under the circumstances of the case would be unreasonable[8].

Vii Conclusion and Suggestions:-

The justification behind laying down Chapter 22 under the Code of Criminal Procedure is to guarantee the appearance of individuals or people who have been restrained, confined and apprehended in prisons, reformatories, or penitentiaries before the Criminal Courts. The detailed conditions under which this can be done along with the reasonable and valid justifications to do or not do so have also been laid down. It is a Chapter that complements the provisions laid down under the Prisoners (Attendance in Courts) Act, 1991 which was the first Act laid down for prisoners.


It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in theConstitution, the power of arrest given to the police is being misused till this day. It is also believed that the police often use their position of power to threaten the arrested persons and take advantage of their office to extort money. There have also been innumerable reports on custodial violence that lead many to believe that deprivation of basic rights of the arrested persons has become commonplace nowadays.

The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated that the accused has the right to know the rights given to him under law and how to enforce such rights. There have also been criticisms that the police fail to inform the persons arrested of the charge against them and hence, let the arrested persons flounder in custody, in complete ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal Justice System where the duty of arrest was thrust upon the Indian officers while the Britisher’s drew up the charge against the accused. Thus, it is entirely possible that the English origins of the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested persons falling through the cracks.

There is imminent need to bring in changes in Criminal Justice Administration so that state should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer and above all it should be clearly understood that socialization is not identical with punishment, for its comprises prevention, education, care and rehabilitation within the framework of social defence. Thus, in the end we find that Rule of law regulates the functionary of every organ of the state machinery, including the agency responsible for conducting prosecution and investigation which must confine themselves within the four corners of the law.


[2]1993 CrLJ 1358 (All)
[3]1996 CrLJ 2102 (Raj)
[4]BhajanVir Singh vs. State of Haryana 1991 CrLJ 1311 (P&H)
[5]Sarjit Singh vs. State of Punjab 1988 CrLJ 533 ( P& H)
[6]Mohd Ansari vs. Secretary, Govt of T.N., 2003 CrLJ 524 (Mad)
[7]Ranjeet Singh vs. State of UP , 1995 CrLJ 3505 (All)
[8]Nain Singh vs. Nain Singh 1992 CrLJ 2004 (J&K)


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