Order XVI-A Rule 2 CPC: Power to Require Attendance of Prisoners to Give Evidence

Order XVI-A Rule 2 of the Code of Civil Procedure, 1908 empowers a civil court to direct production of a person confined or detained in a prison within the State when that person's evidence is material to a suit. A special safeguard applies when the prison is more than 25 kilometres from the courthouse.

Text of Order XVI-A Rule 2 CPC

Source: India Code - Code of Civil Procedure, 1908 (official PDF). State-specific amendments and applicable court rules should also be checked.

Meaning and scope of Rule 2

This provision balances the need for material testimony in civil litigation with the security, administrative and financial implications of moving a person from prison to court. It is concerned with obtaining evidence in a civil suit; it does not by itself grant release from custody or create an unconditional right to personal attendance.

Meaning of important expressions

• Confined or detained: A person held in a prison; under Order XVI-A Rule 1, "detained" also includes detention under a preventive-detention law.
• Prison: Under Rule 1, the expression includes a State-declared subsidiary jail and a reformatory, borstal institution or similar institution.
• Material evidence: Evidence relevant and significant to an issue in the suit, rather than evidence sought merely for convenience or delay.
• Commission: A procedure by which evidence is taken through a court-appointed commissioner rather than requiring the witness to attend the courtroom personally; see Order XVI-A Rule 7 and Order XXVI.

Conditions for ordering attendance

1. The witness must be confined or detained in a prison within the State for the purpose of Rule 2.
2. The court must consider the person's evidence material to the civil suit.
3. The court may direct the officer in charge of the prison to produce the witness.
4. If the prison-to-courthouse distance is more than 25 kilometres, the court must first be satisfied that examination on commission will not be adequate.
5. Any order remains subject to the expenses, exemptions and custody safeguards prescribed by the remaining rules of Order XVI-A.

The 25-kilometre restriction explained

The proviso does not impose an absolute prohibition on producing a prisoner from a prison more than 25 kilometres away. It imposes an additional judicial condition: the court must be satisfied that examination on commission would be inadequate. At a distance of 25 kilometres or less, this particular proviso does not apply, although the other statutory safeguards continue to operate.

For example, if a material witness is held 40 kilometres away, the court must consider whether testimony can adequately be recorded on commission before directing physical production. This example illustrates the statutory test and does not predetermine the court's decision.

Procedure and related safeguards under Order XVI-A

Rule 2 should be read together with the other provisions governing prisoners as witnesses:

• Rule 3 - Expenses: Before making a Rule 2 order, the court requires the benefiting or requesting party to deposit sufficient expenses, including travel and escort costs, subject to applicable High Court rules.
• Rule 4 - State Government exclusions: The State Government may exclude specified persons or classes from removal from prison, having regard to prescribed considerations including public order and public interest.
• Rule 5 - Non-compliance in specified cases: The prison officer must abstain from executing a production order in the circumstances listed in the rule and send reasons to the court.
• Rule 6 - Custody: Where production is required, the prisoner is brought to court and kept in custody until examined or authorised to return.
• Rule 7 - Commission: The court may issue a commission to examine a material prisoner-witness in prison, including where the prison is elsewhere in India and attendance cannot be secured under the preceding rules.

Practical considerations for an application

A party seeking the testimony of a prisoner should identify the witness and prison, explain the issues on which the testimony is material, and provide sufficient particulars to enable the court to assess the necessity of attendance. Where the prison is more than 25 kilometres away, the application should explain why examination on commission would not adequately serve the purpose. The court will also consider the statutory requirements for expenses and the restrictions affecting removal from custody.

Frequently asked questions

Can a prisoner be called as a witness in a civil suit?

Yes. Under Order XVI-A Rule 2 CPC, a civil court may require production of a prisoner within the State if the evidence is material, subject to the statutory conditions.

Is a court order mandatory whenever a party requests a prisoner's evidence?

No. The word "may" confers discretion on the court, and the relevant conditions and safeguards must be considered.

Can the court require a prisoner to travel more than 25 kilometres?

Yes, but only if the court is satisfied that examination on commission would not be adequate, along with compliance with the other applicable provisions.

What if the prisoner is held in another State?

Rule 2 refers to a prison within the State. Rule 7 separately addresses examination on commission where a material witness is confined or detained in a prison within the State or elsewhere in India and attendance cannot be secured under the preceding rules.

Official legal reference

Read the Code of Civil Procedure, 1908 on India Code and the official CPC text (PDF) for Order XVI-A Rules 1 to 7. The applicability of local amendments, High Court rules and case-specific judicial directions should be checked separately.

This article is general legal information and not a substitute for advice on an individual case.