Introduction 

• Order XVI-A of Code of Civil Procedure, 1908 (CPC) states the rules based on attendance of witnesses confined or detained in prisons. 
• This order provides a procedure for obtaining attendance of the prisoners to witness or to produce evidence. 
• Detailed rules have been provided under this order to restrain any arbitrary or mistreatment to the prisoners while giving any evidence. 

Meaning of Detained

• Detained includes detained under any law providing for preventive detention. 
• The definition is given under Sub-rule (a) of Rule 1 of Order XVI-A of CPC. 

Meaning of Prison 

• The definition is given under Sub-rule (b) of Rule 1 of Order XVI-A of CPC, and it includes: 
  • Any place which has been declared by the State Government, by general or special order, to be a subsidiary jail. 
  • Any reformatory, borstal institution or other institution of a like nature. 

What are the Powers & Duties of the Court Under Order XVI-A of CPC? 

• Power to Require Attendance of Prisoners to give Evidence (Rule 2): 
  • When the court deems fit it can order the officer in charge of the prison to produce the person who is required to be produced as witness to give evidence. 
  • The same cannot be made if the distance of the prison from the court is more than 25 Km unless the court is satisfied that the examination of such a person on commission will not be adequate.
• Expenses to be Paid into Court (Rule 3): 
  • Sub-rule (1) states that the party for whose benefit the order has been passed to produce the prisoner as witness shall pay such expenses as the court thinks fit.  
    • The expenses shall be inclusive of the execution of the order, including the travelling and other expenses of the escort provided for the witness. 
  • Sub-rule (2) states that when the order is to be passed by the subordinate court to a High Court, the High Court shall have the power to fix the scale for such expenses.
• Power to Issue Commission for Examination of Witness in Prison (Rule 7): 
  • Sub-Rule (1) states that when the attendance of the prisoner cannot be secured the court may issue a commission for the examination of the witness in prison where he is confined or detained. 
  • Sub-Rule (2) states that the examination of a prisoner under this order shall commence as far as possible in the same manner as if it would have commenced to any other person. 

What is the Power of State Government? 

• Power of State Government to Exclude Certain Persons from the Operation of Rule 2 (Rule 4): 
  • Sub-rule (1) states that the State government may by order bar any person or a class of person to be removed from the prison for witnessing and no order made under rule 2, whether before or after the date of the order made by the State Government, shall have effect in respect of such person or class of persons. 
  • Sub-rule (2) states that the State Government shall have regard to the following matters: 
    • The nature of the offence for which, or the grounds on which, the person or class of persons have been ordered to be confined or detained in prison. 
    • The likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison. 
    • The public interest, generally. 

What are the Duties of Officer in Charge of Prison? 

• Officer in Charge of Prison to Abstain from carrying out Order in Certain Cases (Rule 5): 
  • Where the person in respect of whom the order has been made under Rule 2: 
    • Is certified by the medical officer attached to the prison as unfit to be removed from the prison by reason of sickness or infirmity. 
    • Is under committal for trial or under remand pending trial or pending a preliminary investigation 
    • 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 is confined or detained. 
    • Is a person to whom an order made by the State Government under Rule 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.
• Prisoner to be brought to Court in Custody (Rule 6): 
  • The police officer shall take the prisoner and at such time as ordered by the court to the court and shall keep him near the court premises until his examination and until the court authorities orders to take him back to the prison.

Conclusion

It is important to follow due process of law while making a prisoner witness in any case. It must be in the interest of the public, and the procedure must be complied with due care and diligence otherwise it could be harmful for society as sometimes the prisoners, when taken out from the prison, try to escape. The officer in charge must also abide by the orders of the State government or of the Courts to prevent any mishappening.