An Analysis of Section 267 of the Code of Criminal Procedure, 1973: Power to Require Attendance of Prisoners

An Analysis of Section 267 of the Code of Criminal Procedure, 1973: Power to Require Attendance of Prisoners

Introduction

Section 267 of the Code of Criminal Procedure, 1973 (Cr.P.C.) empowers criminal courts to issue orders, often referred to as production warrants or body warrants, to secure the attendance of persons confined or detained in prisons. This provision is pivotal for ensuring the progress of judicial proceedings, whether it involves an accused answering a charge, participating in ongoing proceedings, or a person being examined as a witness. However, the interpretation of its scope, particularly the ambit of "other proceeding" and its applicability during the investigation stage, has been a subject of considerable judicial scrutiny. This article undertakes a comprehensive analysis of Section 267 Cr.P.C., examining its statutory language, judicial interpretations by various High Courts and the Supreme Court of India, its interplay with other provisions of the Cr.P.C. concerning custody and remand, and the procedural safeguards inherent within it.

Statutory Provision: Section 267 Cr.P.C.

Section 267 of the Cr.P.C. reads as under:

267. Power to require attendance of prisoners.

(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, 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 for answering to the charge or for the purpose of such proceeding or, as the case may be, for giving evidence.

(2) Where an order under sub-section (1) is made by a Magistrate of the second class, it shall not be forwarded to, or acted upon by, the officer in charge of the prison unless it is countersigned by the Chief Judicial Magistrate to whom such Magistrate is subordinate.

(3) Every order made under sub-section (1) or sub-section (2) by a Civil Court which is subordinate to a District Judge shall have effect unless it is countersigned by the District Judge; and every order made under this section by a Criminal Court which is inferior to the Court of a Magistrate of the first class shall have effect unless it is countersigned by the Judicial Magistrate of the first class within whose local jurisdiction such Court is situate or by the Chief Judicial Magistrate if such Criminal Court is subordinate to him. (Note: Sub-section (3) as quoted in some older commentaries or in relation to the repealed Prisoners (Attendance in Courts) Act, 1955, differs. The primary focus for Cr.P.C. is typically on sub-sections (1) and (2) for criminal matters. The text of Section 267 Cr.P.C. itself primarily contains sub-sections (1) and (2) as relevant to criminal courts, with specific provisions for civil courts in Section 267 being less common in criminal law discourse. The reference to sub-section (3) in *State Of Rajasthan v. Santosh Yadav* (Rajasthan High Court, 2005) appears to discuss the older Act or a specific state amendment not universally applicable, as the standard Cr.P.C. text focuses on the countersignature by the CJM for a Second Class Magistrate's order in criminal matters.)

The provision empowers a criminal court to direct the production of a prisoner for three main purposes: (i) for the prisoner to answer a charge of an offence, (ii) for the purpose of any proceedings against the prisoner, or (iii) for the prisoner's examination as a witness if deemed necessary for the ends of justice. Sub-section (2) provides a safeguard by requiring the countersignature of the Chief Judicial Magistrate for orders issued by a Magistrate of the second class, ensuring oversight by a senior judicial officer (*Harshad S. Mehta. v. C.B.I.*, Delhi High Court, 1992).

Judicial Interpretation and Scope of "Other Proceedings"

A significant area of judicial debate concerning Section 267 Cr.P.C. revolves around the interpretation of the phrase "other proceeding under this Code" found in sub-section (1), and "for the purpose of any proceedings against him" in clause (1)(a). The central question is whether "proceedings" includes the stage of investigation conducted by police.

The Traditional View: "Other Proceedings" Excludes Investigation

The Delhi High Court in *Harshad S. Mehta. v. C.B.I.* (Delhi High Court, 1992; also reported as 1992 SCC ONLINE DEL 461) took a restrictive view, holding that the term "other proceedings" would mean proceedings *pending in Court*. The Court opined that this phrase was included to cover proceedings like those under Sections 145 and 146 Cr.P.C., which are neither inquiries nor trials. Crucially, the Court stated, "But this by no stretch of imagination would mean investigation." It further clarified that the power under Section 267 Cr.P.C. "cannot be used to facilitate the investigating agency" and is to be exercised by the Court for limited purposes related to matters before it. The Court reasoned that if the legislature intended to include investigation, it would have explicitly stated so. This view was echoed in *State Of Rajasthan v. Santosh Yadav* (Rajasthan High Court, 2005), which emphasized that "investigation" as defined in Section 2(h) Cr.P.C. (collection of evidence by a police officer) is distinct from court proceedings. The Rajasthan High Court also drew an analogy from the Supreme Court's interpretation of Section 73 Cr.P.C., noting that warrants under that section are for appearance before the Court, not solely for production before the police in aid of investigation.

An Expanded Interpretation: Accommodating Practical Necessities

Conversely, the Madras High Court in *C. Natesan v. State Of Tamil Nadu And Others* (Madras High Court, 1998) argued for a wider interpretation. It opined that the words "other proceeding under this Code" in Section 267(1) and "for the purpose of any proceedings against him" in Section 267(1)(a) should not be given a restricted meaning to align only with "inquiry" or "trial". The Court suggested that such a construction would further the ends of justice and not frustrate them, implying that the provision could be invoked in a broader set of circumstances, potentially including aspects related to the initiation or progress of a case that might involve investigation.

The Evolving Stance: Section 267 in Aid of Investigation

More recent judicial pronouncements and observations indicate an evolving understanding, or at least a pragmatic acceptance, of the use of Section 267 Cr.P.C. during the investigation phase. The Calcutta High Court in *In The Matter Of : Enforcement Directorate* (Calcutta High Court, 2022) referred to the Supreme Court's decision in *Mohd. Jalees Ansari v. CBI* ((2016) 11 SCC 544). In *Ansari*, the designated court had issued a production warrant, and after the accused's production, the investigating agency prayed for police custody. The Calcutta High Court observed, "Thus, the concept of issuing production warrant at the time of investigation is no more an issue to be decided." This suggests a high judicial recognition of the practice.

Indeed, practical applications often see Section 267 Cr.P.C. being invoked for investigative purposes. In *Harshad S. Mehta. v. C.B.I.* (1992 SCC ONLINE DEL 461) itself, the initial order by the Special Judge, Delhi, directed production of Mr. Mehta "as his presence was required for interrogation in connection with the investigation of this case." Subsequently, upon production, he was formally arrested and remanded to police custody. Similarly, the Karnataka High Court in *AYAZ KHAN v. STATE BY* (Karnataka High Court, 2023) noted that the petitioner, already in custody in another case, "was taken into custody by the investigation agency... by obtaining a body warrant as is contemplated under Section 267 of Cr.P.C and custodial interrogation has been completed." Further, in *SANDEEP GURURAJ v. STATE OF KARNATAKA* (Karnataka High Court, 2024), it was recorded that the petitioner, produced under Section 267 Cr.P.C., "was given to the police custody and later he was remanded to the judicial custody in the present case."

This evolving jurisprudence suggests that while the primary legislative intent might have been focused on court-centric proceedings, the utility of Section 267 Cr.P.C. for producing an accused from one prison to another jurisdiction where a new case is registered (and investigation is ongoing) is often judicially countenanced, typically followed by formal arrest and remand proceedings under Section 167 Cr.P.C. in the new case.

Purpose and Limitations of Section 267 Cr.P.C.

The fundamental purpose of Section 267 Cr.P.C. is to ensure that the confinement of a person in prison does not impede the course of justice in other pending or new matters where their presence is required. The limitations are inherent in its wording:

  • The power is vested in a Criminal Court and is discretionary ("the Court may make an order").
  • It must be exercised during an "inquiry, trial or other proceeding under this Code."
  • The purposes are specified: answering a charge, for any proceedings against the prisoner, or for giving evidence.
  • Orders by a Magistrate of the second class require countersignature by the Chief Judicial Magistrate.

The debate, as discussed, centers on whether "facilitating investigation" falls within these permissible purposes. If interpreted strictly, using Section 267 Cr.P.C. solely for police interrogation without any immediate court proceeding (like formal arrest and remand) could be seen as exceeding its scope (*Harshad S. Mehta. v. C.B.I.*, Delhi High Court, 1992). However, if production is sought to formally arrest the accused in a new case and then seek remand from the competent court, it aligns with the broader objective of bringing an accused within the judicial process of that new case.

Section 267 Cr.P.C.: Interplay with Custody, Arrest, and Remand

The issuance of an order under Section 267 Cr.P.C. has significant implications for the custody status of the prisoner.

Nature of Custody under a Section 267 Order

The Karnataka High Court in *MR PRAJWAL ELROY RAJ v. THE STATE OF KARNATAKA* (Karnataka High Court, 2025), citing its earlier decision in *M. SHASHIDHARA @ SHASHI AND ANOTHER VS. STATE OF KARNATAKA* (ILR 2023 KAR 2081), clarified the nature of custody. It held that an order under Section 267 Cr.P.C. results in a temporary suspension of custody in the earlier case for the specific purpose enumerated in Section 267. Importantly, "order issued under Section 267 of Cr.P.C., does not authorise the custody of that particular accused in subsequent case." The custody, for all practical purposes, remains with the court that first remanded the accused. Therefore, a "body warrant" under Section 267 Cr.P.C. does not, by itself, authorize detention in the new case, especially if the accused is entitled to bail in the original case. This was reiterated in *M.SHASHIDHARA @ SHASHI v. STATE OF KARNATAKA* (Karnataka High Court, 2022), which referred to circulars directing the release of prisoners detained *only* under body warrants without a separate judicial remand order in the new case, citing *Ram Dass Ram Vs. State of Bihar and Another* (1987 SUPP. (1) SCC 143).

Formal Arrest and Remand Post-Production

When a prisoner is produced before a court in a different case pursuant to a Section 267 Cr.P.C. order, the investigating agency in the new case typically moves for formal arrest. Following this, the agency may seek police or judicial custody under Section 167 Cr.P.C. The order of remand under Section 167 Cr.P.C. is a distinct judicial act, separate from the Section 267 order. This procedure was followed in *Harshad S. Mehta. v. C.B.I.* (1992 SCC ONLINE DEL 461), where Mehta was formally arrested upon production and then remanded. The Supreme Court's decision in *Manubhai Ratilal Patel Through Ushaben v. State Of Gujarat And Others* (2013 SCC 1 314), while not directly on Section 267, underscores that a judicial remand order under Section 167(2) Cr.P.C. is a valid judicial act, and its legality is assessed independently. The concept of "custody" for bail purposes, as discussed in *Sundeep Kumar Bafna v. State Of Maharashtra And Another* (2014 SCC 16 623), where surrender to court constitutes custody, provides a broader understanding of how an accused comes under a court's custodial jurisdiction.

Impact on Pre-existing Bail

If an accused is already on bail in the case for which they are produced under Section 267 Cr.P.C. (having been taken into custody in a *different* intervening case), the mere production under Section 267 does not automatically nullify their bail in the original case. In *AJIM KHAN v. THE STATE OF KARNATAKA* (Karnataka High Court, 2018), the court held that where an accused, on bail in Special Case No. 42/2014, was produced from custody in another crime (Crime No. 140/2018) via a body warrant, the trial court in Special Case No. 42/2014 was not justified in taking him into custody in that case, as his bail was still subsisting and had not been cancelled. The production under body warrant rendered any earlier Non-Bailable Warrant (NBW) for non-appearance otiose if the absence was due to custody in another case.

Procedural Safeguards and the Duty of the Court

Section 267 Cr.P.C. incorporates certain safeguards. The requirement of countersignature by the Chief Judicial Magistrate for orders of a Magistrate of the second class (*Harshad S. Mehta. v. C.B.I.*, Delhi High Court, 1992) is one such check. The discretionary nature of the power ("may make an order") implies that the court must apply its mind to the necessity of production for the stated purposes. The potential for misuse, especially if sought to circumvent procedures for obtaining custody for investigation, necessitates judicial vigilance. The principles laid down in *Sunil Batra (Ii) v. Delhi Administration* (1980 SCC 3 488), affirming that prisoners retain fundamental rights, are relevant in ensuring that production orders are not made mechanically or in a manner that unduly harasses the prisoner.

The term "warrant" is not explicitly used in Section 267 Cr.P.C., leading to some debate about its character. In *LALIT SHYAM TEKCHANDANI v. STATE OF MAHARASHTRA AND ANR.* (Bombay High Court, 2024), it was contended that Section 267 contemplates "permission" rather than a "warrant." However, colloquially and in many judicial orders, such orders are referred to as "production warrants" or "body warrants," and their effect is to compel production.

Section 268 Cr.P.C.: An Override to Section 267

Section 268 Cr.P.C. serves as a check on the power under Section 267. It allows the State Government to direct, by general or special order, that any person or class of persons shall not be removed from the prison in which they are confined or detained, if their removal is likely to lead to public disorder or if they are of a certain character. Such an order under Section 268 Cr.P.C. effectively overrides an order made under Section 267. The Gujarat High Court in *Aniruddhsinh Mahipatsinh Jadeja v. State Of Gujarat And Ors.* (2003 GLH 0 1) referred to a situation where the State Government passed an order under Section 268(1) Cr.P.C., taking into account factors relevant under Section 267.

Conclusion

Section 267 of the Cr.P.C. is an indispensable tool for the criminal justice system, enabling courts to secure the presence of prisoners essential for the adjudication of cases. While its core purpose relates to facilitating inquiry, trial, or other court proceedings, judicial interpretation has grappled with its application during the investigation stage. The traditional view, articulated by the Delhi High Court in *Harshad Mehta*, restricts its use for purely investigative aid. However, a more pragmatic and evolving stance, supported by observations from the Calcutta High Court referencing Supreme Court jurisprudence (*Mohd. Jalees Ansari*), and the practices evident in various High Court cases, suggests that Section 267 Cr.P.C. is often employed to bring a prisoner before a court in a new jurisdiction where an investigation is pending. This is typically followed by formal arrest and remand proceedings under Section 167 Cr.P.C., thereby legitimizing custody in the new case.

The judiciary plays a crucial role in balancing the operational needs of law enforcement with the rights of prisoners and the statutory limitations of Section 267. The distinction between a Section 267 order (for production) and a subsequent remand order (for detention) is critical. While Section 267 facilitates the transfer of a prisoner, it does not, in itself, authorize prolonged detention in the new case without adherence to further legal processes such as formal arrest and judicial remand. The safeguards within the section, coupled with the overriding power of the State Government under Section 268 Cr.P.C., and vigilant judicial oversight, are essential to prevent misuse and ensure that the provision serves the ends of justice effectively and fairly.