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Philip John Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1985CriLJ397
AppellantPhilip John
RespondentState of Himachal Pradesh and ors.
Cases ReferredPrem Shanker Shukla v. Delhi Administration
Excerpt:
- p.d. desai, c.j.1. rule. to be heard today.2. the learned advocate-general waives service of the rule on behalf of the respondents.3. the petitioner is a prisoner undergoing sentence of imprisonment in the model central jail at nahan. it appears that he was brought and lodged in the sub-jail, kaithu, at shimla for undergoing medical treatment at the snowdon hospital, shimla, sometime in the month of april 1984. on april 11, 1984 the custody of the petitioner was handed over to two police constables named thina ram and hem raj at about 10 a.m. for taking him to the snowdon hospital for medical check-up. those two constables handcuffed the petitioner while taking him to the hospital and even while he was medically examined by dr. m.l. sharma, associate professor, department of e.n.t.,.....
Judgment:

P.D. Desai, C.J.

1. Rule. To be heard today.

2. The learned Advocate-General waives service of the Rule on behalf of the respondents.

3. The petitioner is a prisoner undergoing sentence of imprisonment in the Model Central Jail at Nahan. It appears that he was brought and lodged in the Sub-Jail, Kaithu, at Shimla for undergoing medical treatment at the Snowdon Hospital, Shimla, sometime in the month of April 1984. On April 11, 1984 the custody of the petitioner was handed over to two police constables named Thina Ram and Hem Raj at about 10 A.M. for taking him to the Snowdon Hospital for medical check-up. Those two constables handcuffed the petitioner while taking him to the Hospital and even while he was medically examined by Dr. M.L. Sharma, Associate Professor, Department of E.N.T., Himachal Pradesh Medical College, Shimla, he was in handcuffs. The petitioner has alleged in the petition that when he was produced before Dr. M.L. Sharma, he directed that the handcuffs be removed. However, the constables refused to remove the handcuffs staling that they had been directed not to do so. Dr. M.L Sharma in the course of his affidavit has denied this allegation. However, the fact that the petitioner was handcuffed while being taken to the hospital and while he was examined by Dr. M.L Sharma and also while being taken back to the Sub-Jail, Kaithu, is not in dispute. The petitioner has prayed that the respondents be committed under the Contempt of Courts Act, 1971 for having committed contempt by acting in utter disregard of the directions issued by the Supreme Court to the effect that rule regarding the prisoner in transit is freedom from handcuffs and that the exception will be restraint with irons to be justified before or after.

4. The prayer made by the petitioner is misconceived since this Court has no jurisdiction to commit for contempt any person who acts in wilful disregard/breach of the directions issued by the Supreme Court in regard to the handcuffing of under-trial prisoners/convicts while in transit. The Court cannot, however, throw out the petition on that ground, for, the law declared by the : Supreme Court is binding on all Courts within the territory of India (vide Article 141) and it is not only within the power, authority and jurisdiction of this Court to secure the enforcement of such law by or through the agencies of the State by issuance of an appropriate writ, but also its constitutional obligation and duty to do-so. Besides, all authorities, civil and judicial, in the territory of India have to act in aid of the Supreme Court (vide Article 144). Under the circumstances, the State and its agencies are under a constitutional obligation and duty to ensure the enforcement of the directions/ instructions issued by the Supreme Court, An appropriate writ can, therefore, issue in exercise of the judicial powers of this Court to secure such enforcement on the pain of contempt. Under the circumstances, we proceed to consider the question whether, against the background of the aforesaid factual matrix, the concerned respondents have acted in disregard of the directions/instructions issued by the Supreme Court in regard to the handcuffing of the under-trials/convicts while being moved from one place to another.

5. The relevant provisions of the Prisons Act, 1894 (hereinafter referred to as 'the Act') may be adverted to first. Section 55 of the Act provides that a prisoner, when being taken to or from any prison in which he may be lawfully confined, or whether he is working outside or ' is otherwise beyond the limits of any prison in or under the lawful custody or control of a prison-officer belonging to such prison, shall be deemed to be in prison and shall be subject to all the same incidents as if he was actually in prison. Section 56 provides that whenever the Superintendent considers it necessary (with reference either to the state of the prison or the character of the' prisoners) for the safe custody of any prisoners that they should be confined in irons, he may, subject to such rules and instructions as may be laid down by the Inspector-General with the sanction of the State Government, so confine them. Section 58 provides that no prisoner shall be put in irons or under mechanical restraint by the Jailer of his own authority, except in case of urgent necessity, in which case notice thereof shall be forthwith given to the Superintendent.

6. Para 536-A of the Manual for the Superintendence and Management of Jails jn the Punjab, which is applicable in the State of Hinachal Pradesh, deals with transfer of prisoners to civil hospitals in case of serious ilness. One of the instructions contained irt the said Paragraph reads as follows :

The Superintendent of the Jail concerned is responsible for making adequate arrangements for the guarding of such prisoners in a civil hospital. He should invariably inform the Superintendent of Police concerned when any desperate or dangerous prisoner is sent to the hospital and it will rest with the latter officer to decide whether he will replace the usual warden guard by a police guard in view of the danger of escape or rescue. In any case not less than one officer of the prison shall remain in the hospital with the prisoner to serve as the prison officer in control of the prisoner for the purpose of Section 55 of the Prisons Act.

7. Section 224 of the Penal Code provides, inter alia, that any person, who escapes or attempts to escape from any custody in which he is lawfully detained for any offence with which he is charged or of which he has been convicted, shall be punished with imprisonment of either description which may extend to a term of two years, or with fine, or with both. The punishment is in addition to the punishment for an offence for which he was charged or of which he was convicted

8. On a combined reading of the above-referred statutory provisions, it is apparent that a prisoner ; (a) when being taken .to or from any prison in which he might have been lawfully confined, for the purposes, inter alia, of medical treatment, or (b) when he is working outside or is otherwise beyond the limits of any prison, such as when he is being actually medically examined or is taking medical treatment in any hospital, in or under the lawful custody or control of a prison officer belonging to such prison, will be regarded as in in prison, by virtue of the legal fiction enactecd in Section 55 of the Act, and that he can be dealt with Under Section 224 of the Penal Code in case he escapes or attempts to escape from such custody. In case of a desperate prisoner with a tendency to make good his escape, his being placed in the custody or control of a prison officer belonging to the prison in which he was confined, while he is actually being medically examined or is taking medical treatment in a hospital, thus provides an adequate safeguard and it is for that reason that Para 536-A of the Jail Manual gives necessary directions in that regard. Be it realised by the prison as well as the police authorities that an escape, or even an attenipt to escape on the part of a prisoner from such custody, is not merely an offence against the jail discipline, but also an offence punishable under the ordinary law of the land and that a prisoner guilty of such an offence must be offered for a trial before a court and that such a course, if scrupulously and meticulously followed, would itself prove adequate deterrent against any attempt on the part of a prisoner to escape from lawful custody. Besides, while dealing with a prisoner whose character and antecedents justify greater precaution being exercised while taking him to and from any prison to any place and vice versa, increased strength of the escort and transit of the prisoner in well-protected vehicles, would constitute additional deterrents/safeguards. Handcuffing would be permissible in rare cases only, where strong grounds exist to entertain a reasonable belief that no alternative measures would suffice. Sections 56 and 58 of the Act also lay down a clear legislative policy that confinement in irons or mechanical restraint is not a rule but an exception and that such confinement is permissible only in certain cases and subject to certain limitations.

9. In Sunil Batra v. Delhi Administration : 1978CriLJ1741 , it was held that the convicts are not fully denuded of their Fundamental Rights although a prisoner's liberty is circumscribed by the very fact of his confinement. While referring to Section 56 of the Act, it was observed that two basic considerations in the context of prison discipline are the security of the prison and safety of the prisoner and that, therefore, the necessity of putting any particular prisoner in bar fetters must be relatable to those two factors. The determination of the necessity to put a prisoner in bar fetters has to be made after application of mind to the peculiar and special characteristics of each individual prisoner. The nature and length of sentence or the magnitude of the crime committed by the prisoner are not relevant for the purpose of determining that question. Putting bar fetters for an unusually long period without due regard for the safety of the prisoner and the security of the prison would certainly be not justified Under Section 56, especially in cases where medical opinion suggests removal of bar fetters. The observations made in Sunil Batra's case 1978 Cri LJ 1741 (SC) relate to confinement in irons and they clearly indicate the judicial approach in the matter of imposition on prisoner of fetters which interfere with his personal liberty.

10. The direct decision on the point of handcuffing of a prisoner while in transit is in Prem Shankar Shukla v. Delhi Administration : 1980CriLJ930 . In that case, an undertrial prisoner complained of forced handcuffs while being taken to Court for trial and the guidelines laid down and directives issued in that decision must be borne in mind by every prison and police authority when the question of hand-cuffing of a prisoner arises, whether the person concerned be an undertrial prisoner or a convict undergoing the sentence of imprisonment. For ready reference, the relevant portions of the said judgment are annexed hereto as Annexure 'A'. The sum and substance of the guidelines and directives are that : (1) handcuffing is, prima facie, inhuman and, therefore, unreasonable, is overharsh and, at the first flush, arbitrary ; (2) the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised ; (3) insurance against escape does not compulsorily require handcuffing and there are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions ; (4) if a few more guards would suffice, then no handcuffs ; if a close watch by armed policemen will do, then no handcuffs ; if alternative measures may be provided, then no iron bondage ; this is the legal norm ; (5) save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit -- the onus of proof of which is on him who puts the person under irons -- the police escort will be committing personal assault of mayhem if he handcuffs or fetters his charge ; (6) tangible testimony, documentary or other, or desperate behaviour, geared to making good his escape, alone will be a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or by taking the prisoners in well- protected vans/vehicles ; these measures would ordinarily serve as alternative safeguards ; and(7) even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so ; in cases of under-trial prisoners, the escorting officer, whenever he handcuffs a prisoner produced in Court, must show the reasons so recorded to the Presiding Judge and get his approval.

11. In no uncertain terms the law has been declared by the Supreme Court in the following words in Prem Shankar's case 1980 Cri LJ930 at pp. 940-41 :

The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced the rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after.

12. The law declared by the Supreme Court in Prem Shankar's case 1980 Cri LJ 930 on the question of handcuffing of prisoners is applicable in regard to all categories or classes of prisoners irrespective of whether a person is an undertrial prisoner or a convict. The observations made and directions given in the judgment are to be applied, so far as may be, even to prisoners who are undergoing sentence or detained under any other law for the time being in force.

13. The question arising for determination in the present case has to be viewed against the aforesaid background. As earlier pointed out, the fact that the petitioner, while being taken to and from the Snowdon Hospital and while being medically examined by Dr. M. L. Sharma, was handcuffed, is not in dispute. The only justification for handcuffing the prisoner, which has been offered by the two constables in whose custody the petitioner all along was, is that the petitioner had a tendency to be aggressive and to escape from custody. In support of this plea, the constables have relied upon a report (information) lodged against the petitioner by Head Constable Som Dutt (District Sirmour) and recorded in the daily diary at Police Lines, Kaithu, on May 4, 1983. The report was to the effect that while the petitioner and another prisoner were under transit from the Model Central Jail, Nahan, to the Sub-Jail, Kaithu at Shimla, without handcuffs, the petitioner was on the look out for an opportunity to escape, but a strict watch having been kept on him, he could not succeed However, after reaching Shimla, he made two attempts to escape ; first, when, on arrival, he was made to sit in the 'Sharma Vashno Dhaba' near the bus stand, he ran towards Puran Mal Dharmsala, but was chased and apprehended and, second, when, in the afternoon, he was being brought back to the Sub-jail, Kaithu, from the Snowdon Hospital and when the party reached the Central Telegraph Office, he at once started taking long steps towards the Lower Bazar and ultimately tried to run away but was overpowered and apprehended. He had to be handcuffed after the above attempts were made by him to escape from custody. The report proceeded to state further as follows :

He is very clever, shrewd and is badly reputed prisoner and it is not at all safe to take him without handcuffs as he can escape at any moment and can jump.

14 The petitioner in the course of his two affidavits has denied the incidents referred to in the aforesaid report lodged at the police Lines, Kaithu. In terms his case is that he had never made any attempt to escape from police custody and that the report, if any, in that regard was not correct.

15. Now, in the first place, it is not in dispute that no case for attempt to escape from custody was registered and no prosecution was launched against the petitioner in regard to the alleged incident. The report was made and treated as relevant merely for the purpose of bringing to the notice of the police personnel who might be required to escort the petitioner in future, that he was a person with a tendency to make good his escape if an opportunity afforded itself and that caution was required to be exercised whenever it became necessary to take him out of jail for being taken to any place. It was, in our opinion, a serious lapse on the part of the concerned authorities not to offer the petitioner for trial before a court and to establish the charge. If such a step had been taken and conviction obtained, concrete proof of the dangerousness of the petitioner in transit would have been readily available. Besides, the conviction could have worked as a deterrent factor against his repeating such an attempt in future. In the next place, no attempt at the appropriate level appears to have been made on the present occasion to ascertain whether measures other than handcuffing would suffice to ensure safe custody of the petitioner. The decision to handcuff the petitioner was apparently taken by the two constables in whose custody he was placed. No report appears to have been made to any higher authority seeking instructions in this regard and it is not shown that any alternative measures were suggested or sought for. It was essential on the part of the authorities at higher level to consider and record whether providing police escort in increased strength and carrying the petitioner in well protected van or vehicle would not serve as an alternative safeguard. There is thus a clear breach of the guidelines and directives issued in Prem Shankar's case 1980 Cri LJ 930 (SC). In the absence of proper material on record, we are not satisfied that handcuffing was essential in the present case.

16. For the foregoing reasons, it is apparent that the respondents, more particularly respondents Nos. 4 and 5 (Police constables who handcuffed the petitioner), have acted in clear breach of the law declared by the' Supreme Court. Though it has not been established that there has been a willful disregard on their part of the law so declared, it clearly transpires that there does not appear to be enough awareness on the part of theprison officers as well as on the part of the police officer, in whose custody prisoners arekept during transit, as regards the clear instructions issued and directives given by thehighest Court in the matter of handcuffing of prisoners. Under the circumstances, in order to ensure that the prison authorities as well as the police authorities in charge of prisoners during transit act in conformity with the law so declared, it would be just and proper to direct the State Government to circulate a copy of this judgment to all Jail Superintendents and to all Superintendents of Police in this State, within a period of 15 days, with a clear direction that the observations made in this judgment as well as the instruction issued and the directions given in regard to handcuffing of prisoners in transit in the portion extracted from the decision of the Supreme| Court in Prem Shankar's case 1980 Cri LJ 930 annexed hereto be strictly followed and that any breach thereof would be seriously viewed. The Court would like to observe that it in future, any such instance of handcuffing of prisoners (under-trials or convicts) in breach| of these observations, instruction or directions I comes to notice, the same will be viewed seriously having regard to the fact that all prison officers and police officers must be deemed to have now become aware of the law regarding handcuffing. The State overnment will also take requisite steps in regard toproviding the prison and/or police authoritiesi with adequate means and authority to devisesafeguards such as increasing the strength ofescorts or taking in well-protected vans theprisoners with the proclivity to escape fromcustody so that handcuffing is not required tobe resorted to as far as possible. The StateGovernment will also ensure that even wherehandcuffing is inevitable, when a prisoner istaken to a hospital for medical treatment,adequate alternative arrangements are madeso that the removal of handcuffs, if the medical officer so advises or requires, becomes possible in such a case also. Necessary safeguards maybe provided in every Civil Hospital and due enforcement of the instructions contained in Para 536-A of the Jail Manual in this regard may be ensured. The State Government will take necessary action in this regard within three months.

17. Rule made absolute accordingly.

18. Let a copy of this judgment together with the annexure be forwarded, under the seal of the Court and the signature of the Registrar, to the Secretary, Home Department, and the Inspector General of Prisons, for due compliance with the directions issued hereinabove. Let a copy of the judgment together with the annexure be also circulated i amongst all the Judicial Officers in the State for their information and guidance and for due implementation of the directions given in paras 36 and 37 (extracted in the annexure) of the decision of the Supreme Court in Prem Shankar's case 1980 Cri LJ 930.

19. The Court wishes to place on record its appreciation of the services rendered by Mr. B.K. Malhotra, Advocate, appearing as amicus curiae on behalf of the petitioner.

Annexure 'A' to the judgment in Criminal Writ Petition No. 7 of 1984, Philip John v. State of H.P. and others, decided on June 4, 1984.

Extrahe decision of the Supreme Court in Prem Shanker Shukla v. Delhi Administration : 1980CriLJ930 .

5. The petitioner is an under-trial prisoner whose presence is needed in several cases, making periodical trips between jail house and magistrate's court inevitable. Being in custody he may try to flee and so escort duty to prevent escape is necessary. But escorts, while taking responsible care not to allow their charges to escape, must respect their personhood. The dilemma of human rights jurisprudence comes here. Can the custodian fetter the person of the prisoner, while in transit, with irons, may be handcuffs or chains or bar fetters? When does such traumatic treatment break into the inviolable zone of guaranteed rights? When does disciplinary measure end and draconic torture begin? What are the constitutional parameters, viable guidelines and practical strategies which will permit the peaceful co-existence of custodial conditions and basic dignity? The decisional focus turns on this know-how and it affects tens of thousands of persons languishing for long years in prisons with pending trials. Many Shuklas in shackles are invisible parties before us that makes the issue a matter of moment. We appreciate the services of Dr. Chitale and his junior Shri Mudgal who have appeared as amicus curiae and belighted the blurred area of law and recognise the help rendered by Shri Sachthey who has appeared for the State and given the full facts.

9. Here is a prisoner -- the petitioner -- who protests against his being handcuffed routinely, publicly, vulgarly and unjustifiably in the trips to and fro between the prison house and the court house in callous contumacy and invokes the writ jurisdiction of this Court under Article 32 to protect, within the limited circumstances of his lawful custody. We must investigate the deeper issues of detainee's rights against custodial cruelty and infliction of indignity, within the human rights parameters of Part III of the Constitution, informed by the compassionate international charters and covenants. The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. No longer is this liberating writ trammelled by the traditional limits of English vintage ; for our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in America, the broader horizons of habeas corpus spread out beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity or defiles his personhood to a degree that violates. Articles 21, 14 and 19) enlivened by the Preamble.

11. In Sunil Batra's case : 1978CriLJ1741 (supra) it has been laid down by a Constitution Bench of this Court that imprisonment does not, ipso facto, mean that fundamental rights desert the detainee.

20. This collection of handcuff law must meet the demands of Articles 14, 19 and 21. In the Sobraj case : 1978CriLJ1741 the imposition of bar fetters on a prisoner was subjected to constitutional scrutiny by this Court. Likewise, irons forced on under-trials in transit must conform to the humane imperatives of the triple articles. Official cruelty, sans constitutionality, degenerates into criminality. Rules, Standing Orders, Instructions and Circulars must bow before Part III of the Constitution. So the first task is to assess the limits set by these articles.

22. Handcuffing is prima facie inhuman and. therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to Article 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the Courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis?

23. Insurance against escape does not compulsorily require handcuffing. There are other measures, whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopaedia Britannica, Vol. II (1973 Edn.) at p. 53, states 'Handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment'. The three components of 'irons' force on the human person must be distinctly, understood. Firstly, to handcuff is to hoop harshly. Further to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Articles 14 and 19 that when therc is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and emoralising to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 in the face. The minimal freedom of movement which a detainee is entitled to under Article 19 ; see Sunil Batra, AIR 1978-SC 1675 :1978 Cri LJ 1741 (supra) ; cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is 1 available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping.

25. The only circumstance which validates incapacitation by irons -- an extreme measure -- is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf. But even here, the policeman's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability. So it is that to be consistent with Articles 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will sufice, then no handcuffs. If a close watch by armed policeman will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.

26. Functional compulsions of security must reach that dismal degree that no alternative will work except manacles. We must realise that our Fundamental Rights are heavily loaded in favour of personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die hard. Discipline can be exaggerated by prison keepers ; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity. We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers, which must be countered by strict directions to keep to the parameters of the Constitution. The conclusion flowing from these considerations is that there must first be well-grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick. The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the undertrial is a crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit -- the onus of proof of which is on him who puts the person under irons -- the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policeman, cavalier fashion, handcuff prisoners in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron' restraint.

27. Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control It is hard to imagine such situations. We must repeat that it is unconscionable, indeed, outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing. This elitist concept has no basis except that on the assumption the ordinary Indian is a sub-citizen and freedoms under Part III of the Constitution are the privilege of the upper sector of society.

28. We must clarify a few other facets, in the light of Police Standing Orders, Merely because a person is charged with a grave offence he cannot be handcuffed He may be very quiet, well-behaved docile or even timid. Merely because the offence is serious, the inference of escape-proneness or desperate character does not follow. Many other conditions mentioned in the Police Manual are totally incongruous with what we have stated above and must fall as unlawful. Tangible testimony, documentary or other, of desperate behaviour, geared to making good his escape, alone will be a valid ground fo.r handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well-protected Vans. It is heartening to note that in some States in this country no handcuffing is done at all, save in rare cases, when taking under-trials to Courts and the scary impression that unless the person is confined in irons he will run away is a convenient myth.

29. Some increase in the number of escorts, arming them if necessary, special training for escort police, transport of prisoners in protected vehicles, are easily available alternatives and, in fact, are adopted in some States in the country where handcuffing is virtually abolished, e.g. Tamil Nadu.

30. Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. Nor will mere recording the reasons do, as that can be a mechanical process mindlessly made. The escoring officer, whenever he handcuffs a prisoner produced in Court, must show the reasons so recorded to the Presiding Judge and get his approval. Otherwise, there is no control over possible arbitrariness in applying hancuffs and fetters. The minions of the Police establishment must make good their security recipes by getting judicial approval And, once the Court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in Article 21 which insists upon fairness reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty. The ratio in Meneka Gandhi's case and Sunil Batra's case : [1978]2SCR621 (Supra) read in proper light, leads us to this conclusion.

31 We therefore, hold that the petition must be allowed and handcuffs on the prisoner dropped. We declare that the Punjab Police Manual in so far as it puts the ordinary Indian beneath the better class breed (paras 26.21-a and 26. 22 of Chap XXVI) is untenable and arbitrary and direct that Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Articles 14, 19 and 21, so also para 26.722(b) and(c). The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the Court where the victim is produced. We go further to hold that para 26.22(1) (d), (e) and (f) also hover perilously near unconstitutionality unless read down as we herein direct. 'Desperate character' is who? Handcuffs are not summary punishment vicariously imposed at police, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and extra-guards can make up exceptional needs. In very special situations, we do not rule out the application of irons. The same reasoning appears to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. We remove the handcuffs from the law and humanize the police praxis to harmonize with the satwic values of Part HI. The law must be firm, not foul stern, not sadistic, strong, not callous.

35. Before we conclude, we must confess that we have been influenced by the thought that some in authority are sometimes moved by the punitive passion for retribution through the process of parading under-trial prisoners cruelly clad in hateful irons. We must also frankly state, that our culture, constitutional and other, revolts against such an attitude because, truth to tell.

'each tear that flows, when it could have been spared, is an accusation, and he commits a crime who with brutal inadvertency crushes a poor earth-worm'.(2)

36-37. We clearly declare -- and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jail warder - that the rule regarding a prisoner in transit between prison house and Court house is freedom from handcuffs and the exception, under conditionsof judicial supervision we have indicated earlier, will be restrainsts with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other 'irons' treatment and, if he has been, the oficial concerned shall be asked to explain the action forthwith in the light of this judgment.


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