Section 302 BNSS: Power to Require Attendance of Prisoners
Section 302 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Criminal Court to require a person confined or detained in prison to be produced before the Court when that person's presence is needed for a charge, a proceeding, or for giving evidence as a witness.
In simple terms: Section 302 allows a Criminal Court to issue a production order for a prisoner or detainee when personal attendance is required for the administration of criminal justice. The section also places an additional safeguard on orders made by a Magistrate of the second class.
What Section 302 BNSS covers
Section 302 falls in Chapter XXIV of the BNSS, titled Attendance of Persons Confined or Detained in Prisons. It applies during an inquiry, trial or other proceeding under the BNSS when a Criminal Court considers the prisoner's attendance necessary.
The provision contemplates two principal situations:
- the person in prison is required before the Court to answer a charge or for the purpose of proceedings against that person; or
- the person in prison is required as a witness because examination of that person is necessary for the ends of justice.
Text of Section 302 BNSS
302. Power to require attendance of prisoners
(1) Whenever, in the course of an inquiry, trial or proceeding under this Sanhita, 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 answering to the charge or for the purpose of such proceeding or 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 statement, decline to countersign the order.
Meaning and legal effect
1. Power of the Criminal Court
The power is vested in a Criminal Court dealing with an inquiry, trial or proceeding under the BNSS. The Court must form the view that production of the confined or detained person is required for one of the purposes stated in the section.
2. Production to answer a charge or participate in proceedings
Under clause (a), a person in prison may be required before the Court to answer a criminal charge or for the purpose of proceedings against that person. The order is directed to the officer in charge of the prison, who is required to produce the person before the Court subject to the BNSS provisions governing such production.
3. Production as a witness
Under clause (b), the Court may require a prisoner or detainee to be produced as a witness where examination of that person is necessary for the ends of justice. The provision therefore covers not only an accused or person facing proceedings, but also a confined or detained person whose evidence is required.
4. Safeguard for orders by a Magistrate of the second class
If the production order is made by a Magistrate of the second class, the prison authorities cannot act on it unless it is countersigned by the Chief Judicial Magistrate to whom that Magistrate is subordinate.
5. Statement of facts required for countersignature
An order sent for countersignature must be accompanied by a statement explaining the facts that make the production order necessary. The Chief Judicial Magistrate may consider those facts and may decline to countersign the order.
Related provisions in Chapter XXIV
| Provision | Subject | Why it matters with Section 302 |
|---|---|---|
| Section 301 | Definitions | Defines key expressions used in the Chapter, including the scope of detention and prison. |
| Section 303 | Exclusion of certain persons from Section 302 | Allows the State Government or Central Government, as applicable, to exclude specified persons or classes from the operation of Section 302. |
| Section 304 | When prison officer may abstain from carrying out an order | Provides statutory contingencies in which the officer in charge may not carry out a production order. |
| Section 305 | Prisoner to be brought to Court in custody | Deals with custody while the prisoner is brought to and from Court. |
| Section 306 | Commission for examination of witness in prison | Provides an alternative mechanism for examining a witness in prison in appropriate cases. |
Section 302 BNSS and the earlier CrPC provision
Section 302 BNSS substantially corresponds to Section 267 of the Code of Criminal Procedure, 1973, which dealt with the power to require attendance of prisoners. For proceedings governed by the BNSS, Section 302 is the relevant provision. Historical case law under the earlier provision may still assist on analogous questions, subject to the text, scheme and transitional application of the new law.
Important: Whether the BNSS or the earlier Code of Criminal Procedure applies to a particular matter may depend on the date and procedural stage of the case, including the statutory savings and transitional provisions. Case-specific legal advice may therefore be necessary.
Official legal resources
Quick reference
- Provision: Section 302, Bharatiya Nagarik Suraksha Sanhita, 2023.
- Chapter: Chapter XXIV - Attendance of Persons Confined or Detained in Prisons.
- Main purpose: To enable a Criminal Court to require production of a prisoner or detainee for a charge, proceeding or evidence.
- Special safeguard: An order by a Magistrate of the second class requires countersignature by the Chief Judicial Magistrate.
- Supporting requirement: The request for countersignature must include a statement of facts showing why the order is necessary.