Officer in charge of prison when to abstain from carrying out order

In any of the following cases, that is to say,--

1. (a) where the person named in any order made under section 35, section 37 or section 39 appears to be, from sickness or other infirmity, unfit to be removed, the officer in charge of the prison in which he is confined, shall apply to the 2[District Magistrate or the Chief Judicial Magistrate] within the local limits of whose jurisdiction the prison is situate and if such Magistrate, by writing under his hand, declares himself to be of opinion that the person named in the order is, from sickness or other infirmity, unfit to be removed ; or
2. (b) where the person named in any such order is under committal for trial ; or
3. (c) where the person named in any such order is under a remand, pending trial or pending a preliminary investigation ; or
4. (d) where the person named in any such order is in custody for a period which would expire before the expiration of the time required for removing him under this Part and for taking him back to the prison in which he is confined ; the officer in charge of the prison shall abstain from carrying out the order, and shall send to the Court from which the order has been issued a statement of the reason for so abstaining : Provided that such officer as aforesaid shall not so abstain where--
   • (i) the order has been made under section 37 ; and
   • (ii) the person named in the order is confined under committal for trial, or under a remand pending trial or pending a preliminary investigation, and does not appear to be, from sickness or other infirmity, unfit to be removed ; and
   • (iii) the place, where the evidence of the person named in the order is required, is not more than five miles distant from the prison in which he is confined.