As part of their investigation into the murder of Maharashtra MLA Baba Siddique earlier this month, Mumbai police have alleged that the two men accused of shooting him had links to the Lawrence Bishnoi gang. Bishnoi is currently lodged in Gujarat’s Sabarmati jail, under a case of cross-border drug smuggling. He was previously also named in the case of a firing outside actor Salman Khan's residence in Mumbai in April, but Mumbai police could not take his custody. Usually, a person facing trial is brought before the court to attend the proceedings against him, to ensure a fair trial. A criminal court is empowered to issue an order for the same during an inquiry, trial or other proceedings under section 267 of the Criminal Procedure Code (CrPC). However, any investigating agency seeking to interrogate Bishnoi can only access him within the jail premises. Here is why. What prevents investigating agencies from taking Bishnoi’s custody? In August 2023, the Ministry of Home Affairs issued an order referencing Bishnoi, restricting him from being taken out of jail for any purpose. This was under section 268 of the CrPC and was effective for a year. In August 2024, it was extended for another year under section 303 of the new Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the CrPC. As a result, Bishnoi cannot be directed to be produced in court and any agency seeking access to him will have to get an order from a court to question him only within the jail premises. Any court order requiring Bishnoi to be produced for legal proceedings would be rendered inoperative until the restrictive order remains operational. What do the restrictive orders say? Section 268 of the CrPc gave state governments the “power to exclude certain prisoners from operation of section 267”. Under section 303 of the BNSS, both the Central government (in cases instituted by central agencies like the NIA), and state governments can “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, and thereupon, so long as the order remains in force.” Section 303(2) of the BNSS specifies three criteria for invoking the section: a. The nature of the offence for which the person(s) has been ordered to be confined or detained in prison; b. the likelihood of the disturbance of public order if they are allowed to be removed from the prison; and c. the public interest, generally. Investigating agencies argue that interrogating a person in jail can be limiting, as only one or two officials may be permitted to question the person for a few hours or a specific period. Other accused persons cannot be brought in during the interrogation. When can such orders be imposed? Governments have cited security reasons, submitting apprehensions that if the person is allowed out of jail, they may attempt to abscond or their lives could be in danger. Authorities also refer to the person’s criminal history and if many cases are pending against them, an argument can be made for their movement leading to law and order problems. In May 2013, the Maharashtra state passed a Government Resolution (GR) invoking section 268 of the CrPC to restrict the production of Zabiuddin Ansari alias Abu Jundal before the court. An accused in the 2008 Mumbai terror attacks case, the nature of the case against him was cited for the GR. Ansari then approached the Bombay High Court seeking the GR be quashed, stating he wanted to be present in court and had a right to a fair trial. The court rejected his plea and said it could not interfere, given the sensitive nature of the case. It allowed Ansari to attend the trial through a video link from jail. At times, courts have quashed orders of the state government, citing non-sufficiency of reasons to restrict movement. The Gujarat government issued a circular in 2014, giving guidelines for restricting the movement of prisoners in the state. It said the police should give a clear opinion on the accused person’s movement, after considering the prisoner’s conduct and the gravity of the case. Further, arrangements for a speedy trial should be made in cases where the person faces such an order, to ensure that he does not remain in jail without a trial for a long time. Additionally, these provisions have been used to restrict furlough and parole for prisoners in terror cases. In a case before the Gujarat High Court, a man serving 20 years in jail in a terror case approached the court, stating he was not permitted to leave jail to avail of his furlough as an order had been passed under section 268 of the CrPC. Since it had been over a decade since such an order was passed and the convict had previously been permitted parole, the court directed authorities to reconsider their view.
