Order XVI-A of CPC
Order XVI-A of the Code of Civil Procedure, 1908 (CPC), deals specifically with the attendance of witnesses who are confined or detained in prisons. This Order provides a procedural framework to facilitate the production of prisoners in court for giving evidence or producing documents, while also ensuring their security and preventing arbitrary treatment.
It's an important addition to the general provisions of Order XVI, which pertains to the summoning and attendance of witnesses in civil cases. Order XVI-A was introduced to streamline the process of obtaining testimony from incarcerated individuals.
Key Provisions of Order XVI-A:
Rule 1: Definitions:
Defines "detained in prison" and "prison" to include various places of confinement like subsidiary jails, reformatories, borstal institutions, or other similar institutions.
Rule 2: Power to Require Attendance of Prisoners to give Evidence:
Court's Power: The court can, if it deems fit, issue an order to the officer in charge of the prison to produce a person confined or detained in that prison, either to give evidence or to produce documents.
Distance Restriction: This power generally applies if the distance of the prison from the court is not more than 25 kilometers. However, the court can make such an order even if the distance is greater, provided it is satisfied that the examination of such a person on commission would not be adequate.
Rule 3: Expenses to be Paid into Court:
Payment by Party: The party at whose instance the order for the prisoner's attendance is made must pay into court such sum as the court deems sufficient to cover the expenses of the order's execution, including traveling and other expenses of the escort provided for the witness.
High Court's Power: Where the court is subordinate to a High Court, the High Court has the power to fix the scale for such expenses.
Rule 4: Power of State Government to Bar Removal of Prisoners:
State Government's Authority: The State Government has the power to issue an order barring the removal of any person or class of persons from prison for the purpose of giving evidence, if it deems such removal undesirable on grounds of public order, public interest, or any other specific reason.
Effect on Court Order: If such an order is made by the State Government, any order made by the court under Rule 2 (whether before or after the State Government's order) will cease to have effect in respect of that person or class of persons.
Rule 5: Officer in Charge of Prison to Abstain from Carrying Out Order in Certain Cases:
The officer in charge of the prison must abstain from carrying out the court's order under Rule 2 and must send a statement of reasons to the court in the following circumstances:
If the prisoner is certified by the medical officer as unfit to be removed due to sickness or infirmity.
If the prisoner is under committal for trial, under remand pending trial, or pending a preliminary investigation.
If the prisoner's custody period would expire before the completion of the process (complying with the order and returning to prison).
If an order made by the State Government under Rule 4 applies to that prisoner.
Rule 6: Prisoner to be Brought to Court in Custody:
When an order under Rule 2 is delivered to the officer in charge of the prison, they must cause the named person to be taken to the court at the specified time and kept in custody in or near the court until their examination is complete or the court orders their return to prison.
Rule 7: Power to Issue Commission for Examination of Witness in Prison:
Alternative to Personal Attendance: If the personal attendance of a prisoner cannot be secured under the preceding provisions of this Order (e.g., due to distance limitations, State Government bar, or unfitness), but their evidence is material, the court may issue a commission for their examination in prison.
Application of Order XXVI: The provisions of Order XXVI (Commissions) apply, as far as possible, to the examination of a prisoner on commission in prison, similar to how they apply to the examination of any other person on commission.
Importance and Purpose:
Order XVI-A serves several important purposes:
Facilitating Justice: It ensures that crucial evidence from persons in custody can be obtained for the proper adjudication of civil suits.
Balancing Rights and Security: It balances the right of parties to present their evidence with the need for prison security, public order, and the well-being of the prisoner.
Preventing Abuse: By laying down detailed procedures, it aims to prevent arbitrary removal or mistreatment of prisoners during their appearance in court.
Clarity of Procedure: It provides clear guidelines for courts, parties, and prison authorities on how to handle the summoning and attendance of incarcerated witnesses.
This Order is a specific procedural tool within the broader framework of the CPC, designed to address the unique logistical and security considerations involved when a witness happens to be confined in a prison.
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