Report No. 40
8. Inconsistency between Code and Prisoners' Act.- As far as the High Courts qua criminal courts were concerned, there was an overlap and an inconsistency between the provisions of the Code and the provisions of the Prisoners Act. While the power under section 491 of the Code to direct the production of any prisoner for being examined as a witness was unfettered, the identical power under section 37 of the Prisoners Act was limited by the power of the Provincial Government to exclude any prisoners or class of prisoners from the obligation and by the power of the jailer to abstain from complying with the direction of the court for one or other of the reasons specified in section 42 of the Act.
Since, however, the occasion for calling up a prisoner to give evidence in a pending matter before any High Court was extremely rare, this inconsistency in the legal provisions did not give rise to any practical, or even perceptible, difficulty. In regard to the three Presidency Magistrates' Courts, there was a similar overlap and inconsistency between section 542 of the Code and Part IX of the Prisoners Act, but this too appeared to have passed unnoticed.