Code: Section 304 BNSS

304.
Where the person in respect of whom an order is made under Section 302—
(a) is by reason of sickness or infirmity unfit to be removed from the prison; 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 is confined or detained; or
(d) is a person to whom an order made by the State Government under Section 303 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 distance from the prison, the officer in charge of the prison shall not so abstain for the reason mentioned in clause (b).

Explanation of Section 304 BNSS

Section 304 BNSS specifies the circumstances under which the officer in charge of a prison is required to refrain from executing a Court’s order for the transfer of a prisoner for court proceedings. The key aspects of this section include:

• Reasons for Abstaining from Transfer:
  The officer in charge of the prison must not carry out the Court’s order if any of the following conditions apply:
  • (a) Sickness or Infirmity:
    The prisoner is unfit for removal from the prison due to sickness or infirmity.
  • (b) Pending Legal Proceedings:
    The prisoner is under committal for trial, under remand pending trial, or pending a preliminary investigation.
  • (c) Custody Duration Issues:
    The prisoner is in custody for a period that would expire before there is sufficient time to comply with the order and return him to the prison.
  • (d) Applicability of a State Government Order:
    The prisoner is subject to an order issued by the State Government under Section 303.
• Obligation to Report:
  If any of the above conditions exist, the prison officer must not execute the Court’s transfer order. Instead, the officer is required to send a statement of reasons to the Court explaining why the order cannot be carried out.
• Exception for Local Evidence:
  However, if the prisoner’s attendance is needed for giving evidence at a location within twenty-five kilometres of the prison, the officer should not abstain on the ground mentioned in clause (b). This exception ensures that logistical feasibility for nearby court appearances is maintained despite pending trial or investigation statuses.

Illustration

Example 1: Prisoner with Health Issues

A prisoner suffering from a severe medical condition is scheduled to be transferred for a court appearance. Due to his critical health condition, the officer in charge of the prison determines that the prisoner is unfit to be moved from the facility. Consequently, the officer sends a statement to the Court outlining the health-related reasons for not executing the transfer order.

Example 2: Pending Trial Preventing Transfer

In a criminal case, a prisoner is under remand pending trial. The Court orders his transfer for an examination; however, since the prisoner is already committed for trial, the officer in charge of the prison abstains from transferring him. The officer then submits a statement to the Court detailing that the prisoner is under active remand, thus making the transfer impractical.

Example 3: Custody Duration Conflict

A prisoner’s custody period is set to expire before the Court’s order could be fully complied with, including the return of the prisoner to the prison after the court proceedings. In this scenario, the officer refrains from executing the transfer order and provides the Court with a statement explaining that the custody period constraint is the reason for abstaining.

Example 4: Exception for Local Evidence

A prisoner is under remand, but his attendance is required for giving evidence in a nearby Court located within twenty-five kilometres of the prison. In this case, despite the prisoner being under remand (clause b), the officer proceeds with the transfer as the exception applies, ensuring that the prisoner’s evidence is heard without undue delay.

Common Questions and Answers on Section 304 BNSS

1. Under what circumstances must the prison officer refrain from transferring a prisoner?

• Answer:
  The officer must abstain from transferring a prisoner if he is unfit for removal due to sickness or infirmity, is under committal for trial or remand pending trial, has a custody period that would expire before the transfer process is complete, or is subject to an order under Section 303 by the State Government.

2. What must the prison officer do if any of these conditions apply?

• Answer:
  The officer is required to send a statement of reasons to the Court explaining why the prisoner cannot be transferred as per the Court’s order.

3. Is there any exception to the requirement of abstention?

• Answer:
  Yes, if the prisoner’s attendance is required for giving evidence at a place within twenty-five kilometres of the prison, the officer should not abstain on the ground that the prisoner is under committal for trial or remand (clause b).

4. Why is it important to have such provisions in place?

• Answer:
  These provisions ensure that the transfer of prisoners does not compromise their health, legal status, or the logistical integrity of the custody period. They help maintain fairness and the orderly administration of justice while also protecting the rights and welfare of the prisoners.

Conclusion

Section 304 BNSS provides a framework for the safe and orderly transfer of prisoners for court proceedings by outlining specific conditions under which a prison officer must abstain from executing a Court’s order. It requires that any refusal to transfer a prisoner be accompanied by a detailed statement of reasons to the Court, ensuring transparency and accountability. The section also includes a practical exception for local evidence to balance the interests of justice with the protection of prisoners’ rights. For further legal insights and comprehensive guidance on prisoner transfer procedures and related issues, visit ApniLaw.