Section 268 CrPC: Government Power to Restrict Removal of Prisoners - Section 303 BNSS
Section 268 of the Code of Criminal Procedure, 1973 empowered a State Government to prevent specified prisoners from being removed from prison despite a court production order under Section 267. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 303, which also recognises the Central Government's power in the circumstances specified by that provision.
What did Section 268 CrPC provide?
Section 268 formed part of Chapter XXII of the CrPC, concerning attendance of persons confined or detained in prisons. It established an exception to the power of a criminal court under Section 267 CrPC to require production of a prisoner.
Section 268(1): Government order prohibiting removal
The State Government could, at any time, after considering the matters specified in subsection (2), issue a general or special order directing that a person or class of persons must not be removed from the prison where they were confined or detained.
While that order remained in force, a production order under Section 267, whether made before or after the government order, had no effect in respect of the covered person or class of persons.
Section 268(2): Matters the State Government must consider
Before issuing such an order, the State Government was required to have regard to:
- Clause (a): The nature of the offence or grounds for confinement or detention.
- Clause (b): The likelihood of disturbance of public order if the prisoner were removed.
- Clause (c): Public interest generally.
Current law: Section 303 of the BNSS, 2023
Section 303 BNSS, in Chapter XXIV, is titled Power of State Government or Central Government to exclude certain persons from operation of section 302. It follows the same basic structure as the former Section 268 CrPC but expressly includes the Central Government, as the case may be.
Section 303(1): Power of State or Central Government
The competent government may issue a general or special order preventing a person or class of persons from being removed from the prison in which they are confined or detained. For as long as that order operates, an order for prisoner production under Section 302 BNSS, whether earlier or later, has no effect in relation to the specified persons.
Section 303(2): Mandatory considerations
The State Government, or the Central Government in cases instituted by its central agency, as applicable, must consider the nature of the offence or detention grounds, the likelihood of disturbance of public order, and the public interest generally before issuing an exclusion order.
CrPC Section 268 and BNSS Section 303: Key provisions
| Issue | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Restriction on removal | Section 268 | Section 303 |
| Prisoner production order | Section 267 | Section 302 |
| Government authority | State Government | State Government or Central Government, as applicable |
| Factors considered | Offence or detention grounds; public order; public interest | Same three statutory factors |
| Effect | Production order ineffective while exclusion order remains in force | Same operative effect under Section 302 |
Practical effect of a prisoner non-removal order
The provision concerns the physical removal of prisoners for court proceedings. It does not itself determine guilt, grant bail, authorise indefinite detention or extinguish judicial remedies. The scope, validity and continuing operation of an exclusion order depend on the governing statute and the facts of the case.
For example, where a court directs production of a detained person as a witness but a valid exclusion order covers that person, the production direction does not operate while the exclusion order remains effective. Any alternative arrangements for receiving evidence must be considered under applicable procedural law and judicial directions.
Official statutory references
- India Code - official repository of central legislation (search for the Code of Criminal Procedure, 1973 and the Bharatiya Nagarik Suraksha Sanhita, 2023).
- Bureau of Police Research and Development - BNSS reference document.
- Tripura Police - BNSS and CrPC section correspondence reference (PDF).
Frequently asked questions
What is the BNSS equivalent of Section 268 CrPC?
Section 303 BNSS corresponds to Section 268 CrPC. It refers to production orders under Section 302 BNSS, which corresponds to Section 267 CrPC.
Can the Central Government restrict prisoner removal under the BNSS?
Yes. Section 303 expressly provides for the State Government or the Central Government, as the case may be, including Central Government consideration in cases instituted by its central agency.
What happens to a court production order?
For a prisoner covered by a valid and operative exclusion order, the production order under the relevant statutory provision has no effect while the exclusion order remains in force.
This article provides general legal information. The current statutory text, applicable notifications and case-specific orders should be checked before taking action.