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Report No. 40

18. Section 3.- (i) Guidance for issuing order instead of commission.-So far as civil courts are concerned, sub-section (1) of section 3 provides that any such court may require the attendance of a prisoner by issuing an order to the officer in charge of the prison, but only if it is within the State.

While it appears from the wording that whenever a civil court thinks that the evidence of a prisoner within the State is material, the court will normally issue an order under this section for the production of the prisoner, clause (b) of section 7 shows that the court has the option of issuing a commission for examining the witness in prison if the prison is more than 50 miles distant from the court-house. Considering the inconvenience, expense and risks involved in the production of prisoners in court, the Commission is of the view that if the prison is within easy reach of the court-house, the civil court may normally require the attendance of the prisoner for giving evidence in person.

Otherwise, the civil court will normally consider it sufficient to issue a commission for examining him in person, but if it thinks that, in the circumstances of the particular case, examination on commission will not be adequate, it may order the production of the prisoner in court. If the prison is in another State, examination on commission will, as at present, be the only procedure available to the civil court.

As regards the limit of distance to be specified in the rule we think it should be such as to enable the prisoner being brought to the court-house in the morning and taken back to the prison in the evening. We propose 25 kms, (about 16 miles) for this purpose. In practice this would mean that the prison would be within the town, in which the civil court holds its sitting.

In suggesting this provision we have taken into account the fact that Order 16, rule 19(b), precludes the court from summoning a witness residing at a place more than 200 miles away from the court-house. This rule would, of course, be no bar to the production of a prisoner in court under the proposed new rule even if the prison in which he was confined was more than 200 miles from the court¬house. For a prisoner, it is immaterial whether he is less than 200 miles or more than 200 miles away from the court-house, since adequate arrangements will be made for his escort and conveyance and for looking after him while in transit.

(ii) Counter-signature by district judge unnecessary.-Under sub-section (2) of section 3, where an order under sub-section (1) is made by a civil court subordinate to a district judge, it will not have effect unless it is counterpigned by the district judge. We are of the view that this restriction is not necessary and that the subordinate civil judiciary may be trusted to exercise their powers under this section with discretion and care. If magistrates of the first class can be so trusted, there is no reason why the judges of civil courts, some of whom are higher in rank than those magistrates, cannot be entrusted with this power.

It should also be noted that after the separation of the judiciary from the executive, many officers are civil judges and magistrates of the first class at the same time. It is certainly anomalous that while an officer functioning as magistrate of the first class can make an effective order under section 3 without having to submit it to a higher authority, he cannot do so while functioning as a civil court. In practice also, the procedure of submitting the order to the district judge for countersignature does not appear to be anything more than formal routine, and may be safely dispensed with.

(iii) Prior deposit of expenses by party.-Before a civil court makes an order under section 3 for securing the attendance of a prisoner in court, it is desirable that it should require the party concerned to deposit the costs and expenses involved in the execution of the order, including the expenses that will have to be incurred by the State in providing escort. Under the 1955-Act, this is left to be prescribed by rules under section 9(2)(f). We recommend an express rule in the Code of Civil Procedure for the purpose. In drawing it up, the provisions of Order 16, rule 2, have been kept in mind.

One of the comments1 on this proposal has drawn attention to section 50 of the Prisoners Act of 1900, which after laying down that no order shall be made by a civil court for the attendance of a prisoner unless the costs and charges of the execution of such order were first deposited, provided as follows:-

"Provided that, if, upon any application for such order, it appears to the Court to which the application is made that the applicant has not sufficient means to meet the said costs and charges, the Court may pay the same out of any fund applicable to the contingent expenses of such Court, and every sum so expended may be recovered by the Provincial Government from any person ordered by the Court to pay the same, as if it were costs in a suit recoverable under the Code of Civil Procedure.".

It is suggested that as a provision for legal aid to indigent persons it deserved to be retained. The comment further states that when Part IX of the Act of 1900 was re-enacted as the Prisoners (Attendance in Courts) Act, 1955, "the above provision was eliminated which perhaps is not a change of which independent India may feel proud, if the law is now amended, the authorities may consider whether the provision contained in the Act of 1900 should not be restored.".

In our view, however, the general scheme of the Code does not contemplate any such concession regarding expenses of witnesses in civil litigation. Under Order 16, even a pauper has to pay the expenses of witnesses, and all that the Code provides is that under section 35, the court can award costs of the suit including those expenses to the pauper. It will not, therefore, be in order to put in the Code a special provision giving a temporary concession for expenses simply because the witness is a prisoner, when the main provisions of the Code as to witnesses do not give any such facility to an indigent party.

(iv) It has been suggested2 that in the proposed rules provision should also be made for the production of a prisoner before a civil court when his appearance is required for purposes other than giving evidence3, e.g., as a party. We do not consider any such widening of the scope of the existing Act is necessary. Such cases would be of very rare occurrence.

1. Comment of the West Bengal Law Commission.

2. Comment of the District and Sessions Judge, Andamans.

3. Order 5, rule 3, and Order 10, rule 4, Code of Civil Procedure, 1908, have been referred to, in this connection.

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