Section 304 BNSS: When a Prison Officer Must Abstain from Carrying Out a Court Order

Section 304 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) specifies the situations in which the officer in charge of a prison must not carry out a Court's order requiring production of a prisoner under Section 302.

Bharatiya Nagarik Suraksha Sanhita, 2023 | Chapter relating to attendance of persons confined or detained in prisons | Reviewed: September 11, 2026

In brief: If a prisoner falls within any of the contingencies listed in clauses (a) to (d) of Section 304, the prison officer must abstain from carrying out the Court's production order and send the Court a statement explaining the reasons. The proviso creates a limited exception to clause (b) when the person is required to give evidence at a place not more than twenty-five kilometres from the prison.

Text of Section 304, Bharatiya Nagarik Suraksha Sanhita, 2023

304. 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 302 -

(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 or the Central Government under section 303 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 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 reason mentioned in clause (b).

Statutory text verified with the official India Code publication of the Bharatiya Nagarik Suraksha Sanhita, 2023.

What Section 304 BNSS means

Section 304 operates after a Court makes an order under Section 302 BNSS requiring the production of a person who is confined or detained in prison. It imposes a duty on the officer in charge of the prison to withhold compliance in specified circumstances.

The provision balances the Court's need to secure the attendance of a prisoner with practical, medical, custodial and governmental restrictions that may make removal from prison inappropriate or impossible at that time.

When the prison officer must abstain

1. Sickness or infirmity

Under clause (a), the order is not to be carried out when sickness or infirmity makes the person unfit to be removed from prison. The focus is on the prisoner's fitness for removal, not merely on the existence of an illness.

2. Committal, remand or preliminary investigation

Clause (b) applies when the person is under committal for trial, under remand pending trial, or under remand pending a preliminary investigation. This ground is subject to the specific proviso explained below.

3. Custody likely to expire before completion of production and return

Clause (c) applies where the remaining custody period would expire before there is sufficient time to comply with the Court's order and return the person to the prison in which he is confined or detained.

4. Government order under Section 303

Clause (d) applies where the person is covered by an order of the State Government or Central Government under Section 303 BNSS. Section 303 empowers the appropriate Government, subject to the statutory conditions, to exclude specified persons or classes of persons from the operation of Section 302.

Statement of reasons must be sent to the Court

Section 304 does not permit the prison officer simply to ignore the Court's order. When the officer abstains from carrying it out under the section, the officer must send the Court a statement setting out the reasons for doing so. This requirement creates a written explanation for the non-production of the prisoner.

Exception where evidence is required within twenty-five kilometres

The proviso limits clause (b). Where the person's attendance is required for giving evidence at a place not more than twenty-five kilometres from the prison, the prison officer cannot refuse to carry out the order merely on the clause (b) ground that the person is under committal or remand.

Important: The proviso removes only the clause (b) ground in the stated circumstances. The other statutory contingencies in Section 304 continue to operate according to their terms.

Relationship with Sections 302 to 306 BNSS

Section 304 forms part of a connected statutory scheme governing the production and examination of persons confined or detained in prison:

Section 302 deals with the Court's power to require attendance of prisoners.
Section 303 deals with Government power to exclude certain persons from the operation of Section 302.
Section 304 states when the prison officer must abstain from carrying out the Court's order.
Section 305 concerns bringing the prisoner to Court in custody.
Section 306 concerns commission for examination of a witness in prison.

Commencement of BNSS

The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed July 1, 2024 as the date on which the provisions of the BNSS came into force, except the entry in the First Schedule relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.

Official sources

For the authoritative statutory text and official material, refer to the India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 and the Ministry of Home Affairs - New Criminal Laws.

This page is intended as a legal information resource. For proceedings in a particular case, the applicable statutory text, notifications, judicial orders and case-specific facts should be checked.