Karnataka High Court
Jaswinder Singh And Ors. vs State Of Karnataka on 14 March, 2002
Equivalent citations: 2002CRILJ2154, ILR2002KAR2213, 2002(4)KARLJ334, 2002 CRI. L. J. 2154, 2002 AIR - KANT. H. C. R. 1261, (2002) ILR (KANT) (2) 2213, (2002) 3 ALLCRILR 327, (2002) 4 KANT LJ 334, (2002) 3 RECCRIR 634, (2002) 3 CURCRIR 36
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. The petitioner/accused are the undertrial prisoners in S.C. No. 566 of 1999 on the file of City Civil and Sessions Judge, Bangalore, charged for committing offences punishable under Sections 364-A, 307, 323, 324, 342 and 428 read with Section 120-B of the IPC and Sections 25(1)(a) and 27 read with Section 3 of the Arms Act. During the course of trial it appears that one of the defence Counsel Sri Hasmath Pasha filed retirement memo making some personal allegations against the Special Public Prosecutor. Under the directions of this Court, the trial of this case was held on day-to-day basis and the outer limit to dispose off this case was fixed to be by the end of March 2002. The defence Counsel withdrew his participation from 23-11-2001. Thereafter no progress has been made in recording of the evidence, as some of the petitioners/accused were not represented by Counsel.
2. The present petitioner-accused submitted a grievance petition to the Hon'ble Chief Justice dated 5-12-2001. In the said petitions allegations are made against the Special Public Prosecutor contending that he is not conducting the prosecution in a fair manner and evincing undue and over-jealous approach. Therefore, sought the replacement of the Special Public Prosecutor, It is also alleged in the petition that the guidelines of the Supreme Court relating to handcuffing of prisoners is not being followed.
3. It is relevant to note that the Sessions Court has passed detailed considered order on 7-11-2001 on the issue of permitting the handcuffing of the accused only for the limited period of their transit from the prison to Court and back to prevent escape of the accused from the escort custody. It is also relevant to note that the said orders came to be passed when the accused had moved an application for a direction against the escort staff not to handcuff them. Similarly, second application was made by the accused for similar relief which came to be rejected by a considered order on merits dated 28-1-2002. The learned Sessions Judge took the view that the earlier request of the accused had already been rejected On merits, therefore, found that the second application is not maintainable. However, directed that the escort authorities to comply with the guidelines of the Apex Court. In the present grievance petition, there is no reference to the earlier orders of the Sessions Court and there has been no revision or criminal petition filed challenging the said orders. However, as the accused are undefended undertrial prisoners at that moment, the propriety of the escort authorities handcuffing the accused during their transit from prison to Court and back is taken up for consideration.
4. During the later stages of the case, Sri Hasmath Pasha entered appearance for the accused and submitted that the allegations made against the Special Public Prosecutor are withdrawn so also the accused/petitioners submitted that they would withdraw all the allegations made against the Special Prosecutor and prayed for necessary directions to the Trial Court and to the parties for expeditious disposal of the case. Accordingly, this Court issued necessary directions on 5-3-2002 and reserved the orders on the issue of handcuffing, after hearing the Special Public Prosecutor and the Counsel for the accused.
5. The Counsel for the accused relied on the decisions of the Supreme Court (1) In re M.P. Dwivedi and Ors., (2) in Khedat Mazdoor Chetna Sangath v State of Madhya Pradesh and Ors., (3) in State of Maharashtra and Ors. v Ravikant S. Patil, (4) in Sunil Gupta and Ors. v State of Madhya Pradesh and Ors., (5) in Citizen for Democracy through its President v State of Assam and Ors. and (6) in Prem Shankar Shukla v Delhi Administration, .
In Prem Shankar Shukla's case, supra:
6. The legality and constitutional vires of the provisions of Punjab Police Rules, 1934 relating to handcuffing of the prisoners was the subject-matter of scrutiny. Clause 2 of Rule 26.22 provided an exception to the general category of the prisoners who are to be handcuffed and such undertrial prisoners were described as "better class of prisoners" based on their social status, education and superior mode of living to which they were accustomed to. The Supreme Court held that the discrimination of better class of prisoners on the considerations named in the rule was held to be unconstitutional and irrational and made the following observations, the relevant paragraphs of the judgment are extracted hereunder for convenient reference:
"24. Once we make it a constitutional mandate that no prisoner shall tie handcuffed or fettered routinely or merely for the convenience of the custodian or escort and we declare that to be the law -the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or undertrial is any different from a poor or pariah convict or under-trial in the matter of security risk? An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. We hold that it is arbitrary and irrational to classify prisoners for purposes of handcuffs, into 'B' Class and ordinary class. No one shall be fettered in any form based on superior class differentia, as the law treats them equally. It is brutalising to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.
(emphasis supplied)
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 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.
26. Functional compulsions of security must reach that dismal degree where 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 policemen, 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.
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 escorting 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 handcuffs 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 Smt. Maneka Gandhi v Union of India and Anr., and Sunil Batra v Delhi Administration and Ors., AIR 1978 SC 1675, 1978 CriLJ 1741, ( 1978 ) 4 SCC 494, [ 1979 ] 1 SCR 392 read in proper light leads us to this conclusion.
(emphasis supplied)
38. 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 conditions of judicial supervision we have indicated earlier will be restraints 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 official concerned shall be asked to explain the action forthwith in the light of this judgment".
(emphasis supplied)
7. In a separate concurrent judgment Hon'ble Pathak, J., makes the following observation in paras 40, 41 and 43:
"40. It is an axiom of the criminal law that a person alleged to have committed an offence is liable to arrest. In making an arrest, declares Section 46 of the Code of Criminal Procedure, "the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". If there is forcible resistance to the endeavour to arrest or an attempt to evade the arrest, the law allows the police officer or other person to use all means necessary to effect the arrest. Simultaneously, Section 49 provides that the person arrested must "not be subjected to more restraint than is necessary to prevent his escape". The two sections define the parameters of the power envisaged by the Code in the matter of arrest. And Section 46 (sic 49) in particular, foreshadows the central principle controlling the power to impose restraint on the person of a prisoner while in continued custody. Restraint may be imposed where it is reasonably apprehended that the prisoner will attempt to escape and it should not be more than is necessary to prevent him from escaping. Viewed in the light of the law laid down by this Court in Sunil Batra's case, supra, that a person in custody is not wholly denuded of his fundamental rights, the limitations flowing from that principle acquire a profound significance. The power to restrain and the degree of restraint to be employed, are not for arbitrary exercise. An arbitrary exercise of that power infringes the fundamental rights of the person in custody. And a malicious use of that power can bring Section 220 of the Indian Penal Code into play. Too often is it forgotten that if a police officer is vested with the power to restrain a person by handcuffing him or otherwise there is a simultaneous restraint by the law on the police officer as to the exercise of that power.
41. Whether a person should be physically restrained and, if so, what should be the degree of restraint, is a matter which affects the person in custody so long as he remains in custody. Consistent with the fundamental rights of such person the restraint can be imposed, if at all, to a degree no greater than is necessary for preventing his escape. To prevent his escape is the object of imposing the restraint, and that object defines at once the bounds of that power. The principle is of significant relevance in the present case. The prisoner complains that he is unnecessarily handcuffed when escorted from the jail house to the Court building, where he is being tried for criminal offences and back from the Court building to the jail house. He contends that there is no reason why he should be handcuffed. On behalf of the respondent it is pointed out by the Superintendent, Central Jail, Tihar, where the petitioner is detained, that the police authorities take charge of the prisoners from the main gate of the jail for the purpose of escorting them to the Court building and back, and the jail authorities have no control during such custody over the manner in which the prisoners are treated. Section 9(2)(c) of the Prisoners (Attendance in Courts) Act, 1955 empowers the State Government to make rules providing for the escort of persons confined in a prison to and from Courts in which their attendance is required and for their custody during the period of such attendance. The Punjab Police Rules, 1934 contain Rule 26.22 which classifies those cases in which handcuffs may be applied. The classification has been attempted somewhat broadly, but it seems to me that some of the clauses of Rule 26.22, particularly clauses (a) to (c), appear to presume that in every instance covered by any of those clauses the accused will attempt to escape. It is difficult to sustain the classification attempted by those clauses. The rule, I think, should be that the authority responsible for the prisoners' custody, should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent. That is the basic criterion, and all provisions relating to the imposition of restraint must be guided by it. In the ultimate analysis it is that guiding principle which must determine in each individual case whether a restraint should be imposed and to what degree.
43. Now whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion, and I am not willing to accept that the primary decision should be that of any other. The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner. "I do not think that any prior decision of an external authority can be reasonably imposed on the exercise of that power". But I do not agree that there is room for imposing a supervisory regime over the exercise of that power. One sector of supervisory jurisdiction could appropriately lie with the Court trying the accused and it would be desirable for the custodial authority to inform that Court of the circumstances in which, and the justification for imposing a restraint on the body of the accused. It should be for the Court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control".
Sunil Batra's case, supra:
8. The facts reveal that the petitioners who were the social workers staged dharna against the School Teacher in front of the office of the Block Education Officer, the petitioners were charged for committing an offence under Section 186 of the IPC and even after service of sentence of one month of imprisonment they were not released on the ground that they are wanted on some other case. It was found from the records that the petitioner/accused were being regularly handcuffed during the transit from jail to Court and back. In that context, the provisions of Madhya Pradesh Police Regulations relating to handcuffing was one of the subject-matters for consideration. Regulation 465(2) and (3) provided that the escort commander should ask and obtain orders in writing without fail, regarding handcuffing of prisoners, from the Magistrate or the Jail Superintendent before taking into custody the prisoner for escorting from the Court or the jail and strict action should be taken. Non-compliance of the requirement of the regulation was directed to be viewed seriously warranting strict action for the disobedience. In the context of the facts and provisions of Madhya Pradesh Police Regulations the Hon'ble Supreme Court made the following observation in para 23:
"23. Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause. They are not the persons who have got tendency to escape from the jail custody. In fact, petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause. The offence for which they were tried and convicted under Section 186 of the Indian Penal Code is only a bailable offence. Even assuming that they obstructed public servants in discharge of their public functions during the 'dharna' or raised any slogan inside or outside the Court, that would not be sufficient cause to handcuff them. Further, there was no reason for handcuffing them while taking them to Court from jail on April 22, 1989. One should not lose sight of the fact that when a person is remanded by a judicial order by a competent Court, that person comes within the judicial custody of the Court. Therefore, the tailing of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions. It is most painful to note that the petitioners 1 and 2 who staged a 'dharna' for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India. So we strongly condemn this kind of conduct of the escort party arbitrarily and unreasonably humiliating the citizens of the country with obvious motive off pleasing 'someone'".
In re M.P. Dwivedi's case, supra:
9. The provisions of Madhya Pradesh Police Regulations relating to handcuffing of the prisoners was under consideration the petitioners were accused persons and they were arrested in connection with an agitation held and let by them opposing the constriction of Sardar Sarovar Dam on river Narmada. Considering the facts and the material, Hon'ble Supreme Court made the following observations of law in para 11:
"The justification for handcuffing that has been offered about the undertrial prisoners trying to escape from custody does not stand scrutiny because the accused were social activists who were agitating for the protection of the rights of the tribals and at the time of arguments on the bail application of the accused persons, bail was not opposed by the prosecution on the ground of seriousness of the charges against them or the Likelihood of their absconding. It is not disputed that no orders were obtained from the concerned Magistrate with regard to handcuffing of the prisoners before taking them to Court from jail and to the jail from the Court. The handcuffing of the members of the Sangath who were undertrial prisoners, was, therefore, not justified and was in clear disregard of the law laid down by this Court in the decisions referred to above. The question that arises is whether the said actions of the contemners in handcuffing the prisoners constitute contempt of this Court. We will first take up the case of the five police personnel who are contemners 1 to 5".
Khedat Mazdoor Chetna Sangath's case, supra;
10. The petitioner-accused carried out the agitation against the construction of Sardar Sarovar Dam. In that connection cases were booked against them reiterating the ratio of the Supreme Court laid down in Prem Shankar Shukla's case, supra and Sunil Gupta's case, supra. The material portions of the observations made in the said cases were extracted as hereunder and in paras 41, 42 and 43 the Bench made the following observations:
"41. Yet there is another important matter namely, the handcuffing which is to be taken serious note of. This Court has come down upon handcuffing in Prem Shankar Shukla's case, supra. It was held as follows:
"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 undertrial 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".
In the same case at pages 875 and 876 it was held as under:
"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 escorting 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 handcuffs 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".
42. The same principles are reiterated in Sunil Gupta's case, supra. It was held as follows.-
"Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause. They are not the persons who have got tendency to escape from the jail custody. In fact, petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause. The offence for which they were tried and convicted under Section 186 of the Indian Penal Code is only a bailable offence. Even assuming that ttiey obstructed public servants in discharge of their public functions during the 'dharna' or raised any slogan inside or outside the Court, that would not be sufficient cause to handcuff them. Further, there was no reason for handcuffing them while taking them to Court from jail on April 22, 1989. One should not lose sight of the fact that when a person is remanded by a judicial order by a competent Court, that person comes within the judicial custody of the Court. Therefore, the taking of a person from a prison to the Court or back from Court to the prison by the escort party is only under the judicial orders of the Court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approve or disapprove the action of the escort party and issue necessary directions. It is most painful to note that the petitioners 1 and 2 who staged a 'dharna' for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party is against all norms of decency and which is in utter violation of the principle underlying Article 21 of the Constitution of India. So we strongly condemn this kind of conduct of the escort party arbitrarily and unreasonably humiliating the citizens of the country with obvious motive of pleasing 'someone'".
43. These two pronouncements constitute the law of the land. The plea of ignorance of the law only is stated to be rejected. What is worse in this case is the Magistrate behaving in this way. We are of the view that magistracy requires to be sensitised to the values of human dignity and to the restraint on power. When it allows an inhuman conduct on the part of the police, it exhibits both the indifference and insensitiveness to human dignity and the constitutional rights of the citizens. There could be no worse lapse on the part of the judiciary which is the sentinel of these great liberties. As Jeseph Addison said.-
"Better to die ten thousand deaths than wound my honor" ".
Citizen for Democracy through its President's case:
11. The ratio laid down by the Supreme Court in all the earlier decisions relating to security of undertrial prisoners are considered and reiterated the ratio laid down therein and made the following observations in paras 19, 20 and 21 of the judgment as follows:
"19. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.
20. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the order of the Magistrate as already indicated by us.
21. We direct all ranks of police and the prison authorities to meticulously obey the above-mentioned directions. Any violation of any of the directions issued by us by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law. The writ petition is allowed in the above terms. No costs".
12. The Karnataka Police Manual although are only explaining instructions having no force of law. However, regulates the norms for escorting the convicts and the undertrial prisoners. The relevant Sections 798(d), 817, 830 and 831 to 835 which reads as follows:
Section 798(d).--"Prisoners under sentence for a criminal offence are to be handcuffed before leaving jail. The handcuffs are not to be removed except when the prisoners are before a Court, or confined in a lock-up".
Section 817.--"Undertrial prisoners should not be handcuffed unless there is a reasonable expectation either from the heinous nature of the crimes with which he is charged or from his character or behaviour that such person will use violence or will attempt to escape or that an attempt will be made to rescue him".
"Section 830. Securing of prisoners under escort.--Convicts should be handcuffed during transit. When prisoners under escort are handcuffed, they should always be handcuffed in pairs, the left wrist of the one being handcuffed to the right wrist of the other. When the number under escort consists of an odd number, as three, five, seven, nine etc., the odd man should be handcuffed to other prisoners. In cases of dangerous or refractory characters special measures should be taken with a view to securing their custody under the order of the Superintendent of Police, While halting, such precautions only should be taken as are absolutely necessary for security. If leg irons are used, leather gaiters must be used for each prisoner to prevent abrasion of the skin. Convict warders and convict overseers need not be handcuffed when under escort from one jail to another.
Section 831. Instructions for using handcuffs.--The use of handcuffs not only causes humiliation to the prisoner but also destroys his self-respect and is contrary to the modern notions in the treatment of offenders. Prisoners should not normally be handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing. No person arrested by a Police Officer or remanded to custody by a Magistrate on a charge of having committed a bailable offence, shall be handcuffed unless for some special reasons it is believed that he is likely to escape. The following instructions are issued in this behalf.-
(1) A prisoner should not normally be handcuffed unless he is violent or disorderly, or circumstances necessitate such handcuffing.
(2) Fetters should not be imposed on any prisoner admitted in a hospital except with the approval of the Medical Officer and in no case prisoners who are aged and bedridden in hospital should be handcuffed or fettered.
(3) In no case handcuffs or fetters should be imposed on women prisoners, juvenile prisoners or civil prisoners.
(4) No person arrested by a Police Officer or remanded to custody by a Magistrate, on a charge of having committed a bailable offence, shall be handcuffed unless for some special reasons it is believed that he is likely to escape.
(5) When an accused is in Court during the trial he must be held to be in the custody of the Court. If the accused is so dangerous that it is necessary to handcuff him, a representation should be made to the Court and the Court will issue proper instructions in the matter. Accused persons while in Courts during trial should not be handcuffed except with the permission of Court.
(6) Undertrial prisoners while being escorted to and from Courts, shall not be handcuffed and chained unless there is a reasonable expectation either from the heinous nature of the crimes with which they are charged or from their character or behaviour that such persons will use violence or will attempt to escape or that an attempt will be made to rescue them. The same principle will be applied to convicts proceeding in public places in police custody. The decision as to whether handcuffs and chains should be used or not will ordinarily lie with the Station House Officer or in his absence, with the officer next below him in seniority. As far as possible, the police escort shall in each case be sufficiently strong to prevent such persons from escaping or giving undue trouble.
(7) Whenever accused, but convicted persons are handcuffed, the facts and the reasons for it shall be stated in the Station House Diary.
(8) Whenever it is considered necessary to handcuff accused, but unconvicted prisoners confined in a sub-jail when taken out in the precincts of the sub-jail for food or exercise, the order of the Superintendent of the sub-jail should be obtained in the prescribed register kept for the purpose by the officer-in-charge of every sub-jail guard.
(9) In regard to refractory, violent or dangerous prisoners, the officer-in-charge of the sub-jail guard or the senior Police Officer present may impose handcuffs in cases where the orders of the Superintendent of the sub-jail cannot be obtained in time to avoid risk, provided the facts shall be reported to the Superintendent at once.
Section 832. Method of using handcuffs and chains.--In securing a prisoner under escort, the primary issue is that the policeman in charge should be alert. He there be negligence in this respect, no amount or method of tying or handcuffing will prevent a prisoners escape.
Section 833.--If it be necessary to use handcuffs, the key-holes of the handcuffs should be kept uppermost, as in this position it is not easy to pen them by striking on some hard substance. Care should also be taken that the handcuffs are not too large; otherwise, prisoner can slip his hand through them.
Section 834,--When there is only one prisoner, there is the simple device of attaching the handcuffs to the prisoner's right hand and to a constable's left. Both the prisoner and the constable can walk in comfort but the prisoner cannot escape.
Section 835.--It is sometimes advisable to handcuff a prisoner with his arms behind his back. The prisoner can walk quite comfortably but cannot run fast; and at the same time, he cannot strike the handcuffs on some hard substance to break them open. When travelling by train, a prisoner who is handcuffed behind cannot easily escape as he finds it difficult to fall out and then pick himself up again".
13. The norms relating to handcuffing of undertrial prisoners under the Karnataka Police Manual appears to be more rational and by and large in conformity with the guidelines laid down by the Apex Courts in the pronouncements referred to above unlike the archaic provisions of Punjab Police Rules.
14. The close reading of the ratio laid down by the Supreme Court in several cases indicate the following inviolable guidelines:
(1) Handcuffing of the undertrial prisoner is not a rule but an exception.
(2) The accused in the custody of the escort staff who is under judicial custody is deemed to be under such custody and authorisation of the Court and therefore, transit of the prisoners from jail to Court and back should necessarily be by the order of the Magistrate or Sessions Court. Without such orders handcuffing by the escort officials is impermissible.
(3) Handcuffing of the prisoner in transit from jail to Court and back should be dependent upon justifiable reasons like his antecedents, his violent behaviour, likelihood of attempt of escape or rescue.
15. Mere fact that the alleged offence is heinous in nature shall not warrant justification of handcuffing.
16. As laid down by the Hon'ble Supreme Court, violent, disorderly behaviour and antecedents of the prisoner are the relevant factors, apart from the post-arrest incidents of violent and disorderly behaviour; the antecedents, the violent conduct, behaviour or scheming actions of the accused while committing the offence and the motive for the crime, shall also be a requisite consideration for justification or otherwise for handcuffing, which the Magistrate or Sessions Court may take into consideration while passing the orders on handcuffing of the undertrial prisoners.
17. Regarding the compliance of the guideline No. (2) observed in para 14, if the police authorities are of the opinion that the handcuffing of the prisoner is necessary, they have to make an application before the Magistrate in that behalf. The Magistrate upon such application, considering the facts and material, keeping in view the guidelines laid down by the Apex Court, shall pass appropriate orders. In the absence of the orders from the Magistrate, it is impermissible for the police or escort authorities to handcuff the prisoners independently when he is in judicial custody.
18. After due consideration of the ratio as culled out above from the various decisions of the Apex Court, coming to the case on hand, the conduct of the escort staff in handcuffing the accused during their transit from prison to Court and back cannot be said to be without a judicial order. Maybe during the committal stage before a Magistrate, no such order is passed. But however, the Sessions Court by its earlier order dated 7-11-2000 permitted handcuffing of the accused for a limited extent and for limited period during the transit. On the second application of the accused the Sessions Court rejected their request by order dated 28-1-2002 on the ground that there has been already an earlier order on this issue and that there are no changed circumstances to review or reconsider the request. The present grievance petition is not in the nature of revision or criminal petition invoking inherent jurisdiction. Nevertheless, keeping in view the ends of justice, this broader issue was also taken up for consideration while hearing the petition and after carefully going through the earlier order of the Sessions Court, where in detail the Court has passed a considered order on 7-11-2000. Almost an year thereafter request is sought to be made in the course of the argument for a direction against the prosecution not to handcuff the accused during their transit from prison to Court and back. Since there is already a concluded order and at a belated stage, the request made does not appear to be tenable, besides, by giving stringent direction, substantial progress has been made in recording of the evidence and presently directions are issued for conclusion of the trial by the end of March 2002.
19. Therefore, keeping in view the nature of the offence with which the accused are charged, the modus operandi of commission of offence and the alleged violent and scheming conduct of the accused in commission of the offence, I find no good ground to interfere with the order of the Sessions Court and moreover the Sessions Court has passed the order for handcuffing for a limited purpose and for a limited period between their transit from prison to Court and back. Under the circumstances, the request for direction against the handcuffing is rejected. The Trial Court is again reminded to comply with the directions laid down for conclusion of evidence and disposal of the case by the end of March 2002.
20. For the strict compliance of the guidelines and for observation of the proper procedures relating to handcuffing as laid down by the Supreme Court, and by this order, I deem it necessary that the copy of this order should be communicated to the Director General of Police and who shall in turn communicate to all the Police Stations in the State.
21. The Registry is also directed to send the copy of this order to the Director of Prosecution to ensure the proper compliance of the guidelines by the Assistant Public Prosecutors and Prosecutors conducting criminal cases before the Criminal Courts.
22. The Registry is also directed to communicate this order to all the subordinate Criminal Courts in the State for ensuring proper compliance of the guidelines.