Section 269 CrPC and Section 304 BNSS: When a Prison Officer Must Abstain from Producing a Prisoner
Section 269 of the Code of Criminal Procedure, 1973 (CrPC) identifies specific circumstances in which the officer in charge of a prison must refrain from carrying out a court order for the production of a prisoner. The corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is Section 304.
What does Section 269 CrPC provide?
Where a court has made an order under Section 267 CrPC for a person confined or detained in prison, the prison officer must abstain from carrying out that order in any of the following circumstances and must send the court a statement explaining the reasons.
- Sickness or infirmity: The person is unfit to be removed from prison because of illness or physical infirmity.
- Committal or remand: The person is under committal for trial, under remand pending trial, or pending a preliminary investigation.
- Insufficient remaining custody period: The period of custody would expire before there is sufficient time to comply with the order and return the person to prison.
- Government exclusion order: An order made by the State Government under Section 268 CrPC applies to that person.
Exception: witness attendance within 25 kilometres
The proviso to Section 269 states that where the prisoner's attendance is required to give evidence at a place not more than 25 kilometres from the prison, the prison officer cannot refuse production solely on the ground stated in clause (b), namely committal for trial or remand pending trial or preliminary investigation. Other applicable grounds are not displaced by this proviso.
Section 304 BNSS: Corresponding current provision
Section 304 BNSS preserves the principal structure of Section 269 CrPC. It operates when a court issues a production order under Section 302 BNSS and lists the same four categories of circumstances. A significant textual change is that clause (d) refers to an exclusion order made by the State Government or the Central Government under Section 303 BNSS, rather than referring only to the State Government under Section 268 CrPC.
The 25-kilometre exception for giving evidence is retained. In qualifying circumstances the prison officer must communicate the reasons for non-production to the court, rather than simply disregarding the order.
Practical application
Medical inability to travel
If illness or infirmity makes removal from prison unsafe, clause (a) is relevant. The reasons furnished to the court should identify the factual basis for non-production.
Person already on remand
Clause (b) covers specified trial-related custody situations. However, if the prisoner is required as a witness within 25 kilometres, clause (b) alone cannot justify abstaining from production.
Custody about to expire
Clause (c) addresses the practical problem of a custody period ending before the production and return journey can be completed.
Government restriction on removal
Clause (d) operates where an applicable government order restricts removal from prison. Under the BNSS, the relevant exclusion order may be issued by either the State Government or the Central Government as provided in Section 303.
Related provisions
Section 266 CrPC defines terms used in the chapter; Section 267 CrPC authorises prisoner production orders; Section 268 CrPC addresses government exclusions; and Section 270 CrPC concerns bringing the prisoner to court in custody. Their BNSS counterparts are Sections 301, 302, 303 and 305 respectively.
Official statutory sources
For the authoritative legislative text and section correspondence, consult the Bureau of Police Research and Development BNSS text and CrPC comparison (PDF) and the official government-hosted BNSS publication (PDF).
Legal information: This article provides a general explanation of the statutory provisions. The text of the applicable law, any amendments and judicial orders should be checked for individual cases.