Code of Civil Procedure, 1908 | Order XVI-A

Order XVI-A Rule 4 CPC - State Government Power to Exclude Prisoners from Court Attendance

Order XVI-A Rule 4 empowers a State Government to prevent the removal of specified prisoners or classes of prisoners for attendance as witnesses in civil proceedings. It also sets out the considerations that must inform such a direction.

Key point: While a State Government order under Rule 4 remains in force, a court's production order under Rule 2 has no effect for the person or class covered by that government order, even if the court order was issued earlier.

Text and meaning of Order XVI-A Rule 4

The rule is titled "Power of State Government to exclude certain persons from the operation of rule 2" and has two sub-rules. The following explains their legal effect without replacing the statutory text.

Sub-rule (1): Power to restrict removal from prison

The State Government may, at any time, issue a general or special order directing that an identified person or class of persons must not be removed from the prison where they are confined or detained. It must consider the factors specified in sub-rule (2).

For as long as the direction remains effective, any order under Rule 2 requiring production of those persons to give evidence is inoperative as regards them, regardless of whether the court's order predates or follows the government direction.

Sub-rule (2): Mandatory considerations

Before issuing the direction, the State Government must have regard to:

Nature of the offence or detention grounds: the offence for which, or grounds on which, the person or class is confined or detained;
Public order: the likelihood of disturbance of public order if removal from prison is permitted; and
General public interest: the broader public interest relevant to the proposed restriction.

Read the precise legislative wording in the official Code of Civil Procedure, 1908 (India Code PDF).

How Rule 4 operates in civil cases

Order XVI-A Rule 2 ordinarily allows a civil court to require a prison officer to produce a detained person whose evidence is material to a suit, subject to the statutory conditions. Rule 4 is an express restriction on that power where a qualifying State Government direction is in force.

A general order can apply to a class of prisoners; a special order can address a particular person or defined situation. The rule does not automatically exclude every prisoner: the operative government direction and its coverage must be established.

Effect on the prison officer and the court

Under Order XVI-A Rule 5(d), the officer in charge must refrain from carrying out the court's Rule 2 production order where the prisoner is covered by a Rule 4 government order, and must send the court a statement of reasons for not complying.

Where personal attendance cannot be secured, Order XVI-A Rule 7 permits the court, where its conditions are satisfied, to issue a commission for examination of the witness in prison. The procedure for commissions is linked to Order XXVI CPC.

Rule 1: defines "detained" and expands the meaning of "prison" for Order XVI-A.
Rule 3: requires the relevant party to deposit expenses before an order under Rule 2 is made.
Rule 6: governs production and custody when the prisoner is brought to court.

In practice, the court and parties should identify the applicable State Government direction, check whether it remains in force and covers the proposed witness, and consider the lawful alternative of examination on commission where available. State-specific rules or notifications may also require examination.

Frequently asked questions

Can a State Government stop a prisoner from being brought to a civil court as a witness?

Yes. Under Order XVI-A Rule 4, it may issue a general or special direction preventing removal of a person or class from prison, after having regard to the factors listed in sub-rule (2).

Does the restriction apply to an earlier court order?

Yes. Rule 4 expressly makes Rule 2 production orders ineffective for covered persons while the State Government direction is in force, whether those court orders were made before or after it.

Can a prisoner's evidence still be recorded?

Potentially. Rule 7 allows examination on commission in prison where the legal requirements are met. Rule 4 concerns removal from prison under Rule 2; it is not itself a blanket prohibition on taking evidence.

Legal reference: Code of Civil Procedure, 1908, First Schedule, Order XVI-A, Rules 1-7. This is general legal information; applicability of amendments, notifications and local procedural rules should be checked for the relevant State and court.