Report No. 40
Draft Amendments to The Code of Criminal Procedure, 1898
(1) In sub-section (1) of section 491, clauses (c), (d) and (e) shall be omitted.
(2) After section 491, the following section shall be inserted, namely.-
"491A. Power to secure attendance of prisoners.-(4) Whenever, in the course of an inquiry, trial or other proceeding under this Code, it appears to a Criminal Court,-
(a) that a person confined or detained in a prison should be brought before the Court for answering to a charge of an offence, or
(b) that it is necessary for the ends of justice to examine such person as a witness,
the Court may make an order requiring the officer in charge of the prison to produce such person before the Court for answering to the charge or, as the case may be, for giving evidence.
(2) Where an order under sub-section (1) is made by a Criminal Court which is inferior to the Court of a Magistrate of the first class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Sessions Judge, District Magistrate or Chief Judicial Magistrate, as the case may be, to whom that Court is subordinate.
(3) Every order submitted for countersigning under sub-section (2) shall be accompanied by a statement of the facts which, in the opinion of the Court, render the order necessary, and the authority to whom it is submitted may, after considering such statement, decline to countersign the order.
(4) The State Government may, at any time, having regard to the matters specified in sub-section (5), by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under sub-section (1), whether before or after the order of the State Government, shall have effect in respect of such person or class of persons.
(5) Before making an order under sub-section (4), the State Government shall have regard to the following matters, namely:-
(a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison;
(b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and
(c) the public interest, generally.
(6) Where the person in respect of whom an order is made under sub-section (1)
(a) is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity; or
(b) is under committal for trial or under remand pending trial or pending a preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time required for complying with the order and for taking him back to the prison in which he was confined or detained; or
(d) is a person to whom an order made by the State Government under sub¬section (4) applies; the officer in charge of the prison shall abstain from carrying out the Court's order and shall send to the Court a statement of reasons for so abstaining:
Provided that where the attendance of such person is required for giving evidence at a place not more than twenty-five kilometres distant from the prison, the 'officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).
(7) Subject to the provisions of sub-section (6), the officer in charge of the prison shall, upon delivery of an order made under sub-section (1) and duly countersigned, where necessary, under sub-section (2), cause the person named in the order to be taken to the Court in which his attendance is required, so as to be present there at the time mentioned in the order, and shall cause him to be kept in custody in or near the Court until he has been examined or until the Court authorises him to be taken back to the prison in which he was confined or detained.
(8) The provisions of this section shall be without prejudice to the power of the Court to issue under section 503 a commission for the examination, as a witness, of any person confined or detained in a prison; and the provisions of Chapter XL shall apply in relation to the examination on commission of any such person in the prison as they apply in relation to the examination on commission of any other person.
(9) In this section-
(a) 'detained' includes detained under any law providing for preventive detention;
(b) 'prison includes
(i) any place which has been declared by the State Government, by general or special order to be a subsidiary jail; and
(ii) any reformatory, Borstal institution or other institution of a like nature.".
(3) Section 542 shall be omitted.
(4) In section 549, the following sub-section shall be inserted.
"(3) Any High Court may, whenever it thinks fit, direct that a prisoner within the limits of its appellate criminal jurisdiction be brought before a court-martial for trial or to be examined touching any matter pending before such court-martial.".
(5) In Schedule V, after form XLI, the following forms shall be inserted, namely:-