Sections 266, 267 and 268 CrPC: Attendance of Persons Confined or Detained in Prison

Sections 266, 267 and 268 of the Code of Criminal Procedure, 1973 formed part of Chapter XXII dealing with the attendance of persons confined or detained in prisons. These provisions defined the expressions "detained" and "prison", empowered a Criminal Court to require production of a prisoner, and authorised the State Government in specified circumstances to prevent certain prisoners from being removed from prison.

Section 266 CrPC - Meaning of Detained and Prison

Section 266 provided special definitions for Chapter XXII of the Code. These definitions determined the scope of the provisions governing the attendance and production of persons confined or detained in prisons.

Meaning and scope of Section 266

The definition of "detained" was not restricted to a person undergoing imprisonment following conviction. It expressly included a person detained under a preventive detention law.

Similarly, "prison" was given an inclusive meaning. For the purposes of Chapter XXII, the expression could therefore cover a subsidiary jail declared by the State Government and institutions such as a reformatory or Borstal institution.

Section 267 CrPC - Power to Require Attendance of Prisoners

Section 267 dealt with the power of a Criminal Court to require the production of a person who was confined or detained in prison. The power operated during an inquiry, trial or other proceeding under the Code.

When could a Court issue an order under Section 267?

The provision contemplated two principal situations. First, a prisoner could be required before the Court in connection with a charge or proceeding against that person. Second, a confined or detained person could be required as a witness where examination of that person was necessary for the ends of justice.

Order by a Magistrate of the Second Class

Section 267(2) imposed an additional safeguard where an order was made by a Magistrate of the Second Class. Such an order could not be forwarded to or acted upon by the officer in charge of the prison unless it was countersigned by the Chief Judicial Magistrate to whom that Magistrate was subordinate.

Under Section 267(3), the order submitted for countersignature had to be accompanied by a statement setting out the facts which, in the Magistrate's opinion, made the order necessary. After considering that statement, the Chief Judicial Magistrate could decline to countersign the order.

Jharkhand State Amendment to Section 267

The original page also records the Jharkhand amendment to Section 267. Under the State amendment, provision was made in relation to production either in prison or through electronic video linkage. The amendment is identified as Jharkhand Act 2 of 2016.

State amendments should be checked for their territorial application and the relevant date before being relied upon in a particular proceeding.

Section 268 CrPC - State Government Power to Exclude Certain Persons from Section 267

Section 268 qualified the operation of Section 267 by conferring a specific power upon the State Government. It permitted the State Government, after considering the statutory factors, to direct that a particular person or class of persons should not be removed from the prison in which they were confined or detained.

Factors to be considered under Section 268(2)

Before exercising the power under Section 268(1), the State Government was required to have regard to the matters specifically identified in Section 268(2):

1. Nature of the offence or grounds of detention: the nature of the offence for which, or the grounds on which, the person or class of persons had been ordered to be confined or detained.
2. Public order: the likelihood of disturbance of public order if the person or class of persons was permitted to be removed from prison.
3. Public interest: public interest generally.

Relationship Between Sections 266, 267 and 268 CrPC

The three provisions formed a connected statutory scheme. Section 266 supplied the definitions used in the Chapter. Section 267 provided the judicial mechanism by which a confined or detained person could be produced before a Criminal Court. Section 268, in turn, empowered the State Government to restrict removal from prison in specified circumstances after considering the statutory factors.

The provisions should therefore be read together with the succeeding provisions of Chapter XXII, particularly Sections 269, 270 and 271, which dealt respectively with circumstances in which the prison officer was to abstain from carrying out an order, bringing a prisoner to Court in custody, and examination of a witness in prison through commission.

CrPC and the Change to BNSS

The Code of Criminal Procedure, 1973 was the governing central criminal procedure legislation for the period addressed by this article. The Bharatiya Nagarik Suraksha Sanhita, 2023 subsequently introduced the new criminal procedure framework and came into force on 1 July 2024.

Accordingly, where the relevant proceeding or legal issue concerns the period governed by the Code of Criminal Procedure, 1973, the applicable statutory provisions and transitional rules should be examined before determining whether the CrPC or the BNSS governs the particular matter.

Key Points

• Section 266 defined "detained" and "prison" specifically for Chapter XXII of the CrPC.
• Preventive detention was expressly included within the meaning of "detained".
• Section 267 empowered a Criminal Court to require production of a confined or detained person for proceedings or examination as a witness.
• An order of a Magistrate of the Second Class required countersignature by the Chief Judicial Magistrate.
• The Chief Judicial Magistrate could decline to countersign such an order after considering the supporting statement of facts.
• Section 268 empowered the State Government to restrict removal of specified persons or classes of persons from prison.
• Nature of the offence or detention, possible disturbance of public order and public interest were statutory considerations under Section 268(2).