Report No. 40
Provisions Relating To Criminal Courts
27. Power of High Courts under section 491(1)(c), Cr. P.C.- We have already notice1 that, in addition to the 1955-Act, there are two sections in the Code of Criminal Procedure, viz., sections 491 and 542, which also provide for the bringing up of prisoners before criminal courts either for giving evidence or for answering to a criminal charge.
Under clause (c) of the former section, the High Court for any State or Union territory has the power to direct2 that a prisoner detained in any jail within the State or Union territory be brought before the Court to be examined as a witness in any matter pending or to be inquired into in that Court. As a criminal court, every High Court has the same power conferred on it by the 1955-Act in respect of prisoners as well as persons kept in prisons under preventive detention, whether within the State or in another State.
While the High Court's power under the Code is not limited in any way, its power under the 1955-Act is subject to the State Government's power to exclude individual prisoners and class of prisoners and to other limitations laid down in the Act. It is desirable that the discrepancies between these two statutory powers should be removed. We recommend that clause (c) of section 491(1) of the Code be omitted, and that the High Court's power to issue directions for this purpose be regulated by the new section which we are proposing, below.
1. Paras. 6 to 8, supra.
2. This corresponds to the writ known in England as habeas corpus ad testificandum.
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