Sections 266–271 CrPC vs Sections 301–306 BNSS — Attendance of Persons Confined or Detained in Prisons

In India, Sections 301 to 306 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 266 to 271 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. Courts still order prisoners produced as before, but the power to bar a prisoner's removal now belongs to the Central Government as well as the State Government.

This chapter is the source of the production warrant, often called a prisoner transit warrant (P.T. warrant): the order by which a Criminal Court brings a person held in one prison before it, to answer a charge, for other proceedings against him, or to give evidence. It sits between the chapter on plea bargaining and the chapter on evidence in inquiries and trials.

At a glance

These are procedural sections. They create no offence, so neither First Schedule classifies them.

What changed

Section 266 CrPC → Section 301 BNSS

• Minor edit — clause (b)(ii): "any reformatory, Borstal institution or institution of a like nature" → "or other institution of a like nature". Clause (a) and clause (b)(i) are word for word.

Section 267 CrPC → Section 302 BNSS

• Minor edit — "proceeding under this Code" → "under this Sanhita".
• Minor edit — clause (a) ends "against him; or" (was "against him, or").
• Minor edit — "or for the purpose of such proceeding or, as the case may be, for giving evidence" → "or for the purpose of such proceeding or for giving evidence".
• Identical — sub-sections (2) and (3): countersignature by the Chief Judicial Magistrate for a Magistrate of the second class, the statement of facts, and the power to decline.

Section 268 CrPC → Section 303 BNSS

• Expanded — sub-section (1): "The State Government may" → "The State Government or the Central Government, as the case may be, may"; and "whether before or after the order of the State Government" → "the order of the State Government or the Central Government".
• Expanded — sub-section (2): "the State Government shall have regard to" → "the State Government or the Central Government in the cases instituted by its central agency, as the case may be, shall have regard to".
• Minor edit — "no order made under section 267" → "section 302"; heading "Power of State Government to exclude certain persons from operation of section 267" → "Power of State Government or Central Government to exclude certain persons from operation of section 302".
• Identical — the three matters in clauses (a) to (c): the nature of the offence or grounds of detention, the likelihood of disturbance of public order, and "the public interest, generally".

Section 269 CrPC → Section 304 BNSS

• Expanded — clause (d): "a person to whom an order made by the State Government under section 268 applies" → "an order made by the State Government or the Central Government under section 303".
• Minor edit — "an order is made under section 267" → "section 302".
• Identical — clauses (a) to (c) and the proviso, including "not more than twenty-five kilometres distance from the prison".

Section 270 CrPC → Section 305 BNSS — Minor edit: "section 269" → "section 304"; "sub-section (1) of section 267" → "sub-section (1) of section 302".

Section 271 CrPC → Section 306 BNSS — Minor edit: commission "under section 284" → "under section 319"; "Part B of Chapter XXIII" → "Part B of Chapter XXV".

Statutory text (relevant extract)

Extract — Section 302(1) BNSS:

(1) Whenever, in the course of an inquiry, trial or proceeding under this Sanhita, 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 for the purpose of any proceedings against him; 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 …

Extract — Section 303 BNSS:

(1) The State Government or the Central Government, as the case may be, may, at any time, having regard to the matters specified in sub-section (2), 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 … (2) Before making an order under sub-section (1), the State Government or the Central Government in the cases instituted by its central agency, as the case may be, shall have regard to the following matters …

Extract — Section 268(1) CrPC, opening words (old):

(1) The State Government may, at any time, having regard to the matters specified in sub-section (2), by general or special order, direct …

How it works — the steps

1. The order (Section 302(1)). In any inquiry, trial or proceeding under the Sanhita, a Criminal Court that considers a prisoner should be brought before it to answer a charge, for proceedings against him, or to be examined as a witness "for the ends of justice", orders the officer in charge of the prison to produce him.
2. Countersignature (Section 302(2)–(3)). An order by a Magistrate of the second class goes first to the Chief Judicial Magistrate with a statement of facts. The prison acts on it only once countersigned; the Chief Judicial Magistrate may decline.
3. Government exclusion (Section 303). A general or special order of the State Government or the Central Government may bar the removal of a named person or a class of persons. While it is in force, no production order under Section 302 has effect for them, whether made before or after the government's order.
4. When the officer must abstain (Section 304). The officer "shall abstain" and send the Court a statement of reasons where the prisoner (a) is unfit to be removed by reason of sickness or infirmity; (b) is under committal for trial or under remand pending trial or a preliminary investigation; (c) is in custody for a period that would expire before the order could be complied with and he could be taken back; or (d) is covered by a Section 303 order. Ground (b) does not apply where he is needed to give evidence "at a place not more than twenty-five kilometres distance from the prison".
5. Production (Section 305). Otherwise, the officer has the prisoner taken to the Court at the time stated, and kept in custody in or near the Court until examined or until the Court authorises his return.
6. Alternative — commission (Section 306). Instead of production, the Court may issue a commission under Section 319 BNSS to examine the prisoner as a witness in prison.

What this means in practice

For the investigating officer seeking custody in a second case. Where the accused is already in judicial custody in another case, the Supreme Court in Dhanraj Aswani (below) described the route: a formal arrest in the second case followed by an application for a P.T. warrant, or an application for a P.T. warrant without formal arrest, then production before the jurisdictional Magistrate and a request for remand under Section 167 CrPC (now Section 187 BNSS). The Court noted that the provision cannot be used to produce the accused before the investigating agency itself — only before the jurisdictional Magistrate.

For the accused in custody. Being in jail in one case does not bar an application for anticipatory bail in another (Dhanraj Aswani). The window closes once he is arrested on the strength of a P.T. warrant; a mere formal arrest on paper does not close it. Section 482 BNSS now carries the anticipatory bail power.

For the prison officer. The duty in Section 304 is mandatory ("shall abstain") on the four stated grounds, and carries a duty to send the Court a statement of reasons. Absent those grounds, Section 305 requires production.

For prosecutions by central agencies. Section 303 now lets the Central Government make exclusion orders; sub-section (2) refers to the matters it must consider "in the cases instituted by its central agency". On a reading of the text, sub-section (1) states the power for both governments "as the case may be", and sub-section (2) ties the Central Government's consideration to cases its central agency has instituted. No notification under Section 303 was traced or checked for this page.

Video appearance. The chapter itself still speaks of physical production. Section 530 BNSS separately provides that all trials, inquiries and proceedings under the Sanhita "may be held in electronic mode", and Section 308 allows evidence to be taken in the presence of the accused's advocate "through audio-video electronic means at the designated place" notified by the State. See the electronic proceedings page.

Judgments that still matter

No Supreme Court judgment construing Sections 301 to 306 BNSS was found in the corpus searched for this page. Section 302 repeats Section 267 CrPC with drafting edits, so, on a reading of the text, judgments on the operative words of Section 267 remain relevant.

Dhanraj Aswani v. Amar S. Mulchandani & Anr., [2024] 9 S.C.R. 257 (2024 INSC 669) — 9 September 2024. Bench of D.Y. Chandrachud CJI, J.B. Pardiwala and Manoj Misra JJ.; judgment by Pardiwala J. The question was whether an accused in judicial custody in one case can apply for anticipatory bail in another. The Court identified two ways a person in custody may be arrested in a different offence: on release, or while still in custody through a formal arrest and a P.T. warrant under Section 267 CrPC (para 41). It said that where the accused is already in custody, "it is only under Section 267 of the CrPC that he can be removed from such custody and produced before the Magistrate" of the other offence (para 44). After formal arrest, the police officer must apply for a P.T. warrant "without delay", and production is "subject to Sections 268 and 269" (para 52). It noted decisions holding that Section 267 cannot be used to produce the accused before the investigating agency, but can be used to produce him before the jurisdictional Magistrate, reading "other proceedings" to include the investigation stage (para 52). The right to apply for anticipatory bail survives a formal arrest but ends once a P.T. warrant is procured (para 54); once anticipatory bail is granted, the police cannot use Section 267 to seek remand, although the Magistrate may still require production for other purposes (para 55; conclusions in para 60). The Court dismissed the appeal and directed the Bombay High Court to decide the anticipatory bail application on its merits (paras 67–68). The judgment was delivered after 1 July 2024 but construes the CrPC; Section 302 BNSS repeats the operative words.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that text, production orders in a matter pending on that date are made under Section 267 CrPC, and only a State Government order under Section 268 CrPC can bar removal in it. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 267 CrPC?

Section 302 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 267 of the Code of Criminal Procedure, 1973 from 1 July 2024. It lets a Criminal Court order the officer in charge of a prison to produce a person confined or detained there, to answer a charge, for proceedings against him, or to give evidence. The text is the same apart from 'Sanhita' for 'Code' and drafting edits.

Who can stop a prisoner from being removed from prison under the BNSS?

Under Section 303 BNSS, 'the State Government or the Central Government, as the case may be' may by general or special order direct that a person or class of persons shall not be removed from prison. Section 268 CrPC gave this power to the State Government alone. Before ordering, the government must have regard to the nature of the offence or grounds of detention, the likelihood of disturbance of public order, and the public interest.

When can a jail officer refuse to produce a prisoner in court?

Section 304 BNSS requires the officer in charge of the prison to abstain, and to send the Court a statement of reasons, where the prisoner is unfit to be removed through sickness or infirmity, is under committal or remand, is in custody for a period that would end before the order could be complied with, or is covered by a Section 303 order. The committal-or-remand ground does not apply where the evidence is to be given not more than twenty-five kilometres from the prison.

Does an order by a Magistrate of the second class need countersigning?

Yes. Under Section 302(2) BNSS, an order made by a Magistrate of the second class shall not be forwarded to, or acted upon by, the officer in charge of the prison unless countersigned by the Chief Judicial Magistrate to whom the Magistrate is subordinate. Section 302(3) lets the Chief Judicial Magistrate decline to countersign after considering the Magistrate's statement of facts.

Can a person in jail for one case seek anticipatory bail in another?

Yes. In Dhanraj Aswani v. Amar S. Mulchandani ([2024] 9 S.C.R. 257) the Supreme Court held that such an application is maintainable, because a person in custody can be arrested in a different offence, including through a prisoner transit warrant under Section 267 CrPC. The right to seek anticipatory bail ends once he is arrested on the strength of that warrant.

What is a prison for the purposes of these sections?

Section 301(b) BNSS says 'prison' includes any place declared by the State Government, by general or special order, to be a subsidiary jail, and any reformatory, Borstal institution or other institution of a like nature. Section 301(a) says 'detained' includes detained under any law providing for preventive detention.

Can a prisoner be examined on commission instead of being produced?

Yes. Section 306 BNSS, like Section 271 CrPC, preserves the Court's power to issue a commission under Section 319 BNSS for the examination of a person confined or detained in a prison as a witness, and applies Part B of Chapter XXV to that examination.

Which law governs a production order in a case pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial, inquiry or investigation pending immediately before 1 July 2024 continues in accordance with the Code of Criminal Procedure, 1973 as if the BNSS had not come into force. On a reading of that text, production orders in such a matter are made under Section 267 CrPC.

Related

• Section 438 CrPC vs Section 482 BNSS — Anticipatory bail
• Section 167 CrPC vs Section 187 BNSS — Remand and default bail
• Section 530 BNSS — Electronic mode and video evidence
• Witness and accused by video conferencing — BNSS vs CrPC
• Sections 272–283 CrPC vs Sections 307–318 BNSS — Recording of evidence
• CrPC to BNSS master comparison table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text, cross-checked against the official text): Sections 301 to 306, 308, 530, 531(2)(a); headings of Sections 187, 319 and 482.
• Code of Criminal Procedure, 1973 (India Code original text): Sections 266 to 271; headings of Sections 167, 284 and 438.
• Supreme Court judgment read in full text: Dhanraj Aswani v. Amar S. Mulchandani & Anr. (2024_9_257_312_EN.md, report PDF checked).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.