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Report No. 40

21. Section 6.- (i) Section 6 authorises the officers in charge of a prison to abstain from complying with a court's order in certain specified circumstances. Civil Courts are not concerned with the proviso, which is applicable only where "the order has been made by a criminal court".

(ii) Although the implication of section 4 is fairly clear that1 the officer in charge of a prison must abstain from carrying out a court's order if it had inadvertently been made in respect of an exempted person, it is desirable to mention this expressly along with the four grounds specified in section 6.

(iii) Clause (a) of section 6 appears to be unduly cumbrous. Declaration of unfitness by a prescribed authority in the prescribed manner is unnecessary. It should be sufficient if the medical officer attached to the prison certifies that the prisoner is by reason of sickness or infirmity unfit to be removed. In such cases, the officer in charge cannot be expected to comply with the court's order. The clause may be simplified and shortened as above.

(iv) With reference to clause (b) of section 6, one of the comments1 is that there should not be an absolute bar against removing prisoners who are under committal for trial or under a remand pending trial or pending an investigation. It is stated:-

"A prisoner cannot certainly be removed to another Court for the purpose of giving evidence there when his own trial is going on. But apart from that one case, it is not easy to see why he cannot be removed when he is simply awaiting trial under commitment or otherwise or when an investigation concerning some alleged offence committed by him is proceeding. It appears that in the corresponding provisions of the English Act, such as the Criminal Procedure Act, 1953, and the County Courts Act, 1934 there is no such bar, but, on the other hand, prisoners under commitment are expressly mentioned amongst prisoners, against whom an order for their attendance can be made."s

We, however, find that this clause has been there at least since 1900 and in the absence of serious practical difficulty we do not think it should be omitted or modified.

1. As to section 4, see para. 19, supra

2. Comment of the West Bengal Law Commission.



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