IN THE HIGH COURT OF JUDICATURE AT PATNA O. CR. MISC. (DB) No.10 of 2008 ARCHANA Versus THE STATE OF BIHAR & ANR ----------- For the Petitioner : Mr. Kailash Nath Diwakar For the Respondents 1 & 2 : Mr. Lalit Kishore, AAG III & Mr. Satyabir Bharti, J.C. to AAG III ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 31st July, 2008. Heard counsel for the petitioner and Mr. Lalit Kishore, Additional Advocate General. 2. Sections 267 and 268 of the Code of Criminal Procedure, 1973 (for short ‗the Code‘) read thus : ―267. Power to require attendance of prisoners – (1) Whenever, in the course of an 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 submitted for countersigning under sub-section (2) shall be accompanied by a - 2 - statement of the facts which, in the opinion of the Magistrate, render the order necessary, and the Chief Judicial Magistrate to whom it is submitted may, after considering such statement, decline to countersign the order. 268. Power of State Government to exclude certain persons from operation of Section 267. – (1) The State Government 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 is they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Section 267, whether before or after the order of the State Government, shall have effect in respect of such person or class of persons. (2) Before making an order under sub- section (1), the State Government shall have regard to the following matters, namely— (a) the nature of the offence for which, or the grounds on which, the person or class of persons has been ordered to be confined or detained in prison; (b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; (c) the public interest, generally.‖ 3. By virtue of Section 267 of the Code, inter alia, a Court, where criminal trial is held, may direct the prison to produce a prisoner for the purpose of proceeding with the trial. Section 268 of the Code, by way of an exception, empowers the State Government to exclude certain persons from the operation of Section 267 of the Code. If the State Government is satisfied having regard to the matters specified in Sub-section (2) of Section 268, it may make an order under sub-section (2) of Section 268 of the Code directing that a prisoner, whose attendance is required in a criminal trial, shall not be removed from the prison. - 3 - 4. That the State Government has passed an order under section 268(2) of the Code on 21st January, 2008 directing non- production of the accused persons viz. Sanjeet Singh, Lallan Singh and Parmendra Singh who are lodged in Central Jail, Beur, Patna is not in dispute. The legality and correctness of the order dated 21st January, 2008 passed by the State Government under section 268(2) of the Code has not been put in issue by the accused persons or the present petitioner in substantive proceedings. In the circumstances, question of initiation of contempt proceeding does not arise. 5. We are, thus, satisfied that no order needs to be passed in this Original Criminal Misc. application. It is disposed of accordingly. 6. However, we clarify that this will not preclude the aggrieved party to challenge the legality or correctness of the order dated 21st January, 2008 in an appropriate proceeding before an appropriate forum, if so advised. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-