Section 303 BNSS 2023: Government Power to Exclude Certain Prisoners from Section 302
Section 303 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives the State Government, or the Central Government in cases instituted by its central agency, power to direct that a specified person or class of persons must not be removed from prison under an order made under Section 302 BNSS.
Text and effect of Section 303 BNSS
303. (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. While such order remains in force, an order under Section 302, whether made before or after the Government order, does not operate in respect of that person or class of persons.
(2) Before making such an order, the competent Government must have regard to: (a) the nature of the offence or the grounds for confinement or detention; (b) the likelihood of disturbance of public order if the person or class is removed from prison; and (c) public interest generally.
The paragraph above is a reader-friendly presentation of Section 303. For authoritative wording, refer to the official India Code text linked in the sidebar.
What Section 303 means
Section 302 BNSS enables a Criminal Court to require the attendance of a person confined or detained in prison for answering a charge or for participating in proceedings as a witness. Section 303 creates a Government-level exception to that mechanism. If a valid general or special order under Section 303 applies, the prisoner cannot be removed from the prison under Section 302 for so long as the Government order remains in force.
Who may exercise the power?
- State Government: may exercise the power in matters falling within the provision generally.
- Central Government: may exercise the power in cases instituted by its central agency, as stated in Section 303(2).
- The order may apply to a particular person or to a class of persons.
- The order may be general or special and may be made at any time, but the statutory factors in sub-section (2) must be considered.
Factors the Government must consider
1. Nature of the offence or grounds of detention
The Government must consider why the person is in prison, including the nature of the offence or other legal grounds on which the person or class of persons has been confined or detained.
2. Likelihood of disturbance of public order
The Government must assess whether removing the prisoner from prison could create a likelihood of disturbance of public order. This makes security and public-order concerns an express statutory consideration.
3. Public interest generally
The Government must also consider the wider public interest. This is an additional statutory factor and must be read together with the nature of the detention and the public-order assessment.
Relationship between Sections 302 and 303 BNSS
Section 302 BNSS provides the court-facing power to require the attendance of a prisoner. Section 303 allows the competent Government to exclude a person or class of persons from the operation of Section 302. Therefore, an applicable Section 303 order prevails over a Section 302 order for the period during which the Government order remains in force.
Related BNSS provisions
The provisions immediately following Section 303 deal with situations in which the officer in charge of the prison may abstain from carrying out an attendance order, the custody in which the prisoner is to be brought to court, and examination by commission where appropriate. These provisions should be read together when dealing with production of prisoners before courts.