Punjab-Haryana High Court
World Human Rights Council vs Suresh Arora And Ors on 9 March, 2023
Author: Arvind Singh Sangwan
Bench: Arvind Singh Sangwan
Neutral Citation No:=2023:PHHC:038048
C.O.C.P.-3411-2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.O.C.P.-3411-2017
Date of Decision : March 09, 2023
World Human Rights Council .....Petitioner
Vs.
Suresh Arora and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Ranjan Lakhanpal, Advocate
for the petitioners.
Mr. Ayush Sarna, AAG, Punjab.
ARVIND SINGH SANGWAN, J.
The petitioner alleges violation of the directions dated 24.9.2008 passed by the PIL Bench vide which the following directions were issued :-
"In the totality of the above circumstances, therefore, we dispose of the present writ petition with a direction to the Director Generals of Police, States of Punjab and Haryana and Inspector General of Police, U.T., Chandigarh, to issue appropriate directions to all those concerned with the production of the under trials in the Courts, to strictly abide by the directions issued by the Hon'ble Supreme Court and to forbid them from handcuffing the prisoners, except in accordance with the permission of the Magistrate concerned. We further direct that the Registry shall circulate a copy of this order to all the 1 of 18 ::: Downloaded on - 05-06-2023 09:06:33 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -2- Judicial Officers in the States of Punjab, Haryana and U.T., Chandigarh and would impress upon them the need for strict compliance of the directions issued by their Lordships of the Hon'ble Supreme Court. No costs."
A perusal of this order would show that the Bench while relying upon the judgment of Hon'ble the Supreme Court clearly ruled that handcuffs cannot be used except in cases where the Magistrate is approached and permission is granted to the police authorities to do so.
The petitioner which is self styled referred to as "World Human Rights Council" has filed the present petition on the basis of a newspaper report in the 'Hindustan Times' dated 28.10.2007, wherein the heading read 'Gagster Kala Sekhon and two accomplices held in Faridkot'. The petitioner has attached the copy of the news item and the relevant portion of the same reads as under :-
"FARIDKOT : Gangster Manjinder Singh, alias Kala Sekhon 25 and his two accomplices were arrested at Araiya Wala Kalan, 15km from Faridkot, on Friday when they were planning a decoity. Another accomplice escaped.
Kala Sekhon was listed in B-Category gangster lists prepared by Punjab Police which includes gangster wanted in murder, attempt to murder, snatching and dacoity while gangster involves deadly 2 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -3- gang wars, heinous crime, extortions, across the state came in A-Category.
The police also recovered the .32 bore country made weapon along with four live cartridges and rods.
Superintendent of Police (SP Investigation) Sewa Singh said the police have nabbed the gangster from Aaraiya Wala Kalan in Faridkot on a tip off."
In the photograph, three persons are seen with handcuff, along with six police personnel.
The petitioner alleges that the handcuffing of the said gangster amounts to violation of the order dated 24.9.2008.
Reply by way of affidavit dated 14.5.2018 of the Director of Police, Punjab-respondent No.1 is on record, in which it is stated that necessary directions have already been issued to all the Inspectors General of Police, Zones, Deputy Inspectors General of Police, Ranges as well as all the Senior Superintendents of Police, Punjab in the districts vide letter dated 2.2.2019 to ensure meticulous compliance of the order dated 24.9.2008.
In the reply filed by the Superintendent of Police, (Investigation), District Faridkot, it is stated as under :-
"5. That it is humbly submitted that the persons shown in newspaper report (Annexure P-2/ page 21) of the contempt petition are noted criminals 3 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -4- namely, gangster Kala Sekhon, Beant Singh and Sukhjinder Singh. It has been alleged that in newspaper report dated 27.10.2017 depicting a photograph taken on 27.10.2017, the said persons have been handcuffed and therefore the orders dated 24.9.2008 stands violated. It is worth mentioning that the contempt petition has been filed on the grounds that these three dreaded criminals were produced before the Court with handcuffs and the said act is in violation of the mandate of this Hon'ble Court. It is humbly submitted that these persons were never produced before the Court in handcuffs nor they were taken to Court in handcuffs. The person whose human rights are alleged to have been violated on account of handcuffing on 27.10.2017 is a noted gangster of Punjab, namely, Gangster Kala Sekhon. He falls under B-Category gangster, which are required in serious offence such as murder, attempt to murder and dacoity. He was arrested on 26.10.2017 in late evening while he was preparing for a dacoity along with his three other accomplice. It is worth mentioning that on the said day also the aforesaid gangster Kala Sekhon was on parole in another matter. A secret information was received in the Police Station on 26.10.2017 and entry to this effect was made at 6.50 p.m. in Police Station. Acting on the secret information, the police officials made an attempt to arrest aforesaid Kala Sekhon, his three accomplice, namely Beant Singh, Sukhjinder Singh and Mangu. On seeing the police, one Mangu eloped from the spot and other three were arrested. Their preparation to offer a strong resistance to police and 4 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -5- their preparedness matching any professional criminal can be gathered from the fact that when he was arrested 1 country made .32 bore pistol along with 4 live cartridges were recovered from Kala Sekhon i.e Manjinder Singh and one Kapa (Small Axe) and one Kirch (knife) were recovered from Beant Singh and Sukhjinder Singh. The fact that Mangu escaped from the spot and is still absconding shows the criminal tendencies of the accused which required strict action against them.
6. That it is worth mentioning that aforesaid Manjinder Singh @ Kala Sekhon as stated above is a history-sheeter and has been classified as a B- Category gangster in the list of gangsters prepared by State of Punjab. The list of FIR's registered against him are as follows :-
1. In FIR No.163/2010 under Sections 307/326/324/323/148/149 IPC, Police Station City FDK accused was acquitted.
2. In FIR No.285/2011 under Sections 324/325/326 IPC accused was convicted and sentenced for two years.
3. In FIR No.328/2011 under Sections 307/323/324/326 IPC he has been awarded sentence for five years.
4. In FIR No.96/2011 under Section 307 IPC accused has been convicted and sentenced for five years.
5 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -6- 5. In case FIR No.103/2011 under Sections 302 IPC, Police Station Bhagta Bhai is under trial.
6. In case FIR No.01/2012, Police Station Behram Nawan Shahar, under Section 307 IPC and 25/54/59 Arms Act accused has been sentenced for five years.
7. In FIR No.246/2011 under Sections 325/323/148/149 IPC, Police Station City, FDK accused has been convicted and sentenced for 01 year.
8. In FIR No.110/2016 under Sections 302/120-
B/212/216/201/148/149 IPC Police Station City Faridkot is under trial.
7. That the photo referred in this petition has been taken on 27.10.2017 at the premises of Police Station Sadar Faridkot before producing the accused to the learned Court. While producing in the Court no accused was handcuffed. One day police remand was obtained from the learned Court. On their return to Police Station and next day on 27.10.2017 during the transit of accused to the Court room and then to Jail no accused was handcuffed again.
8. That in this scenario, where the aforesaid person was arrested with deadly weapons along with his gang members, wherein 1 member managed to flee the situation was extremely volatile and there were chances that the aforesaid accused could have taken an overt step to secure his release since he is a habitual offender which is apparent from the fact that 6 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -7- he has been convicted 4 times by Court in serious offences and still he commits more offences. The police officials of Police Station were on high alert along with the entire district police as there was apprehension that since Gangster Kala Sekhon has links with other dreaded gangs like that of Kaka Nepal Gang etc. and there was apparent apprehension and reliable inputs that the other gang members will make an attempt to ensure his escape from police station Sadar Faridkot especially in light of the fact that one of the gang members, namely, Mangu who fled from the spot might have informed other gang members and they may retaliate. After the incident pertaining to Nabha Jail Break wherein dreaded gangsters were got escaped, it was incumbent on the police officials of Police Station Sadar Faridkot and the senior police administration to take precautionary measures and handcuffing the prisoner while the newspaper journalists were taking the photographs was just one of such Cautionary measure."
Leaned State counsel on the basis of the two affidavits submits that in fact the accused in the said case were arrested with deadly weapons along with gang members and one member managed to flee from the spot and the situation was extremely volatile and, therefore, the gangsters were arrested and were brought to the Police Station under handcuff. However, when they were produced before the Magistrate, they were not under handcuff.
7 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -8- It would be relevant to refer the judgment of the Hon'ble Supreme Court in 1980 (Supreme Court) 1535 Prem Shankar Shukla Vs. Delhi Administration, wherein it was observed as under :-
"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 Arts. 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.
xxx xxx xxx
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
8 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -9- breed (paragraphs 26.21A and 26.22 of Chapter XXVI) is untenable and arbitrary and direct that In- dian humans shall not be dichotomised and the common run discriminated against regarding hand- cuffs. The provisions in para 26.22 that every un- der-trial who is accused of a non-bailable offence punishable with more than 3 years prison term shall be routinely handcuffed is violative of Arts. 14, 19 and 21. So also para 26.22 (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 pro- duced. We go further to hold that para 26.22 (1)
(b), (e) and (f) also hover perilously near unconsti- tutionality unless read down as we herein direct. 'Desperate character' is who? Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed es- corts, worth the salt, can overpower any unarmed under-trial and extra-guards can make up excep- tional 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 harmonise with the satvic values 9 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -10- of Part III. The law must be firm, not foul, stern, not sadistic, strong, not callous.
xxx xxx xxx
40. 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 exer- cise of that power. But I do 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 pur- pose of enforcing such control.
41. In the present case it seems sufficient, in my judgment, that the question whether the petitioner 10 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -11- should be handcuffed should be left to be dealt with in the light of the observations made herein by the Magistrate concerned, before whom the pe- titioner is brought for trial in the cases instituted against him. The petition is disposed of accordingly."
While relying upon the Prem Shankar Shukla's case (supra) the Hon'ble Supreme Court in (1995) 3 Supreme Court Cases 743 Citizens for Democracy through its President Vs. State of Assam and others has further held as under :-
"16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or under-trial-while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to court and back. The police and the jail authorities, on their own, shall have no authority to direct the hand- cuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.
17. Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete
11 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -12- proof regarding proneness of the prisoner to violence,'his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.
18. In all the cases where a person arrested by police, is produced before the Magistrate and remand
- judicial or non-judicial - is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.
19. When the police arrests a person in execution of a warrant of arrest obtained form 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 guide- lines 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 orders of the Magistrate as already indicated by us."
12 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -13- While relying upon the aforesaid judgment, the PIL Bench has issued identical directions to the Director Generals of Police, Punjab, Haryana and U.T., Chandigarh.
On the face of it, neither the accused Kala Sekhon who is a listed gangster as B-Category in the list prepared by the Punjab Police nor any of his accomplices has filed any case before this Court for violation of the order 24.9.2008.
Counsel for the petitioner on the basis of a newspaper report has filed this contempt petition alleging that the handcuffing of the said person is in violation of the directions dated 24.9.2008.
As per the reply of the Director General of Police, Punjab necessary compliance has already been made and as per the affidavit of the Superintendent of Police, (Investigation), District Faridkot, at the time when the accused were arrested they were preparing for committing an offence of decoity and one of the accomplice, namely, Mangu succeeded in escaping from the spot and till date, he is absconding. Therefore, in order to deter them fleeing from the spot, they were handcuffed and brought to the Police Station.
It is clearly stated that the photograph is of 26.10.2017, which was published in newspaper of 27.10.2017, whereas the accused were produced before the Court subsequently on 27.10.2017 and were not handcuffed and, therefore, the action of handcuffing at the time of 13 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -14- arrest when the accused were armed with deadly weapons, like country made pistols, axes, knives were recovered, the police has every apprehension that they may try to escape, like their third accomplice and, therefore, till the time they were brought in the Police Station for completing the formalities, they were handcuffed and there is no violation of the directions of the Court as it is clearly observed that exceptional circumstances, the handcuffs were used.
After hearing learned counsel for the parties, I find no merit in this case as there is no willful disobedience for the following reasons :-
(i) The accused who were arrested never filed any contempt petition for the violation of the order and it is only the petitioner's counsel, who has filed this petition based on a newspaper report, which is explained by the police that the photograph pertains to time immediately after the raid was conducted and B-Category gangster Kala Sekhon along with his accomplices were arrested along with deadly arms and in that process one another accomplices, namely Mangu succeeded in escaping from the spot and till date he has not been arrested. Therefore, it is not a case that while producing the accused before the Court, they were handcuffed, rather, a deterrent
14 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -15- action was taken to prevent them from escaping the custody till the time they were brought to the Police Station.
(ii) It is not the case of the petitioner that when the accused were produced before the Magistrate on next day i.e. 27.10.2017 they were handcuffed as in that eventuality, the Magistrate itself would have taken note of this fact.
(iii) The Hon'ble the Supreme Court in case Prem Shankar Shukla's case (supra) has clearly held that the only circumstance which validates incapacitation is that there is no other reasonable way of preventing the escape of an accused persons and in the instance case, one of the accused has already been escaped and, therefore, while arresting the accused, the police authorities were justified in handcuffing the accused.
In this judgment, it is further observed that whether handcuffed or other restraints should be imposed on a prisoner is primarily a matter for decision of the authorities responsible for his custody.
(iv) In the instant case, it is duly explained that when the raid was conducted and a B-Category gangster along with his two accomplices were arrested along with 15 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -16- weapons, the Arresting Officer decided to handcuff them till the time they are brought in the Police Station in order to escape as one of their accomplice, i.e. Mangu has succeeded in escaping. The standard procedure followed by the police under Chapter XI, XII and XIII of the Cr.P.C. is that after accused is brought to the Police Station, his formal arrest is made and personal search is conducted in order to find out whether he is carrying any other deadly weapon or not and till that time, the Arresting Officer has opted to put the handcuff. Therefore, in view of Citizens for Democracy's case (supra), the arresting police officer did not exceed his powers.
(v) It is not disputed by the petitioner by filing any rejoinder that the photograph is of the day when the gangster was arrested and it was published on the next day in the newspaper and, thereafter, the accused were presented before the Illaqua Magistrate when they were not in handcuff.
Accordingly, finding that no willful disobedience is made out, this petition is dismissed.
16 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -17- However, one disturbing fact is noticed that in the affidavit of the Superintendent of Police, (Investigating), Faridkot there is reference of Rule 26.22 of Chapter 26 of Punjab Police Rules, 1934.
Copy of the Rules is attached as Annexure A-1.
As noticed in the Prem Shankar Shukla's case (supra), Rule 26.21A and 26.22B (1), (d), (e) and (f) of Punjab Police Rules relied upon by the Superintendent of Police are held to be unconstitutional and still the Superintendent of Police has tried to take shelter of all these provisions.
It seems that even the Assistant District Attorney and Deputy District Attorney attached to the concerned office of Superintendent of Police, have not updated their legal knowledge about the Rule 26 in the light of the Prem Shankar Shukla's case (supra).
Accordingly, a direction is issued to the Director Prosecution, Punjab, Haryana and U.T., Chandigarh to issue a circular to all the District Attorneys/ Deputy District Attorneys/Assistant District Attorneys in their respective States along with judgment of Prem Shankar Shukla's case (supra) that Rule 26.21A and 26.22 are held unconstitutional by the Hon'ble Supreme Court.
Accordingly, Sewa Singh, the then Superintendent of Police, (Investigation), Faridkot as well as the Assistant District Attorney/Deputy 17 of 18 ::: Downloaded on - 05-06-2023 09:06:34 ::: Neutral Citation No:=2023:PHHC:038048 C.O.C.P.-3411-2017 -18- District Attorney/District Attorney, who have vetted the reply attached the said Office of Superintendent of Police are directed to pay a cost of Rs.10,000/- each to be paid to the District Legal Services Authority, Faridkot.
The compliance of this order be sent to the Registrar General of this Court.
( ARVIND SINGH SANGWAN )
March 09, 2023 JUDGE
satish
Whether speaking/reasoned : YES / NO
Whether reportable : YES / NO
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