LawDadi legal information and updates
Home / Code of Civil Procedure / Order XVI-A Rule 5
Code of Civil Procedure, 1908 | Order XVI-A

Order XVI-A Rule 5 CPC: When a Prison Officer Must Abstain from Producing a Witness

Order XVI-A Rule 5 of the Code of Civil Procedure, 1908 specifies four circumstances in which the officer in charge of a prison must not execute a civil court's order requiring a confined or detained person to attend as a witness. The officer must also send the court a statement explaining the reasons.

Key point: Rule 5 imposes a duty to abstain when one of its specified conditions applies. It is not a general discretion to disregard court orders.

Order XVI-A Rule 5: Statutory provision

The provision is headed "Officer in charge of prison to abstain from carrying out order in certain cases". Where an order has been made under Rule 2, the prison officer must abstain if the person:

  1. is certified by the medical officer attached to the prison as unfit to be removed from prison because of sickness or infirmity;
  2. is under committal for trial, or under remand pending trial or a preliminary investigation;
  3. is in custody for a period that would expire before the time needed to comply with the order and return the person to the prison; or
  4. is covered by an order of the State Government made under Rule 4.

Mandatory consequence: The officer in charge must abstain from carrying out the court's order and send the court a statement of reasons for doing so.

For the authoritative statutory wording, consult the Code of Civil Procedure, 1908 on India Code (official PDF). The summary above explains the provision without replacing the official text.

Explanation of the four grounds

1. Medical unfitness: Rule 5(a)

The prison's attached medical officer must certify that the person is unfit for removal because of sickness or infirmity. The provision requires medical certification, not merely an unsupported assertion of illness.

2. Committal or remand: Rule 5(b)

The rule covers a person under committal for trial or remand pending trial or preliminary investigation. In this situation, the prison officer is required to abstain from executing the production order issued under Rule 2.

3. Custody period about to expire: Rule 5(c)

If the person's remaining custody period would end before the journey to court, compliance with the order and return to prison could be completed, Rule 5(c) applies. This avoids using the production process beyond the remaining period of custody.

4. State Government exclusion: Rule 5(d)

Under Order XVI-A Rule 4, the State Government may make a general or special order restricting the removal of specified prisoners or classes of prisoners, having regard to the statutory factors concerning the basis of detention, public order and public interest. If such an order applies, Rule 5(d) requires abstention.

What must the prison officer do?

  1. Examine the production order made under Rule 2 and the prisoner's relevant custody and medical records.
  2. Determine whether any of the four statutory conditions applies.
  3. If a condition applies, refrain from executing the production order.
  4. Send the court a statement setting out the reasons for non-compliance, as expressly required by Rule 5.

The provision does not authorise the officer to silently ignore the order. Nor does Rule 5 itself determine whether the witness's evidence is admissible or whether the civil suit succeeds.

Rule 2 concerns the court's power to order the production of a prisoner whose evidence is material in a suit. Rule 4 permits specified State Government exclusions. Where Rule 5 does not prevent compliance, Rule 6 addresses production in custody. If attendance cannot be secured under the preceding rules, Rule 7 permits examination on commission, subject to its requirements and the relevant provisions of Order XXVI.

Illustrative example

A civil court orders a detained person to appear as a witness under Rule 2. Before the scheduled production, the prison's medical officer certifies that travel would be medically unsuitable because of serious illness. Rule 5(a) requires the prison officer not to carry out that production order and to communicate the reasons to the court. Depending on the circumstances, the court may consider the statutory procedure for examination on commission under Rule 7.

Frequently asked questions

Can a prison officer refuse a civil court's production order?

The officer must abstain where any ground specified in Order XVI-A Rule 5 applies and must give the court a statement of reasons. The rule does not create an unrestricted power of refusal.

Is a medical certificate required?

For the ground in Rule 5(a), yes. The medical officer attached to the prison must certify unfitness for removal due to sickness or infirmity.

Can the prisoner still be examined without attending court?

Potentially. Rule 7 provides for examination on commission where the statutory conditions are met, including where attendance cannot be secured under the preceding rules.

Official legal source

India Code: Code of Civil Procedure, 1908 (Act 5 of 1908), First Schedule, Order XVI-A, Rules 1-7. Check applicable State amendments and High Court rules where relevant to a particular proceeding.