Calcutta High Court (Appellete Side)
Soumen Biswas vs State Of West Bengal & Ors on 25 July, 2013
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble the Chief Justice and
Hon'ble Mr. Justice Joymalya Bagchi
W.P. No. 11851 (W) of 2013
Soumen Biswas
Versus
State of West Bengal & Ors.
For petitioner : Mr. Subrata Mukhopadhyay, Adv.
Mr. Sabyasachi Chatterjee, Adv.,
Ms. Malabika Bhowmik, Adv.
For State : Mr. Ashok Banerjee, Ld. G.P.
Mr. Subrata Talukder, Sr. Adv.,
Mr. Suman Sengupta, Adv.
Heard on : 25.07.2013
Judgement on : 25.07.2013
Joymalya Bagchi, J. : More than three decades ago the apex Court in the case of
Prem Shankar Shukla Vs. Delhi Administration (AIR 1980 SC 1535) declared that
handcuffing of an under trial prisoner or keeping him in prison fetters/chains is
violative of Article 21 of the Constitution and thereby unconstitutional. In spite
of such enquivocal pronouncement, an ailing under trial/student leader was
chained to his hospital bed at North Bengal Medical College in a distressing
display of apathy to our constitutional ethos and commitment to human rights
jurisprudence.
The factual matrix as portrayed in the writ petition is that a student
leader, namely Santosh Sahani, was booked by the police on 10th April, 2013 for
allegedly being a member of an unlawful assembly which had a skirmish with
the law enforcement agencies in the course of a public demonstration.
Admittedly, Santosh Sahani does not have any criminal antecedent. After being
arrested, Santosh Sahani was remanded to judicial custody and was kept at
Siliguri Special Correctional Home. In the night of 14.04.2013, Santosh
complained of uneasiness and was shifted to North Bengal Medical College and
Hospital, Siliguri on 15.04.2013. It has been alleged that on 16th April, 2013
Santosh Sahani was kept chained to the hospital bed for about 40 hours. It has
also been alleged that during the said period he was not provided basic
necessities like food, water and was not even allowed to go to the toilet. It has
been complained that such action is unconstitutional and violative of Articles 14,
19 and 21 of the Constitution.
In this backdrop, the petitioner, a public spirited advocate, has prayed for
a direction upon respondent authorities to act strictly in accordance with law,
particularly, in the matter of use of chains or handcuffs on arrested persons and
to issue directions upon respondent authorities to follow the guidelines of the
Supreme Court in the matter of handcuffing and/or chaining. A direction for
judicial enquiry into the alleged incident has also been prayed. It has been
further prayed that adequate compensation be paid to Santosh Sahani for being
chained in the hospital during judicial custody.
In the affidavit‐in‐opposition filed on behalf of the State it appears that
respondent authorities, in fact, admitted that Santosh Sahani was chained in the
hospital. The authorities have, however, disputed the period for which the under
trial prisoner was chained, which according to them was for a "very brief time"
and they have sought to justify for such heinous act on the excuse of purported
security considerations. The relevant portion of the said affidavit is set out herein
below :
"As per the statement given by the correctional home guard Debashis
Roy concerning at around 11 a.m. of 16.04.2013 as mob gathered in and
around the male medical ward‐II which is open and insecure, the
shouting of whose made the guard (untrained to guard inmates in
public place on medical emergency) felt extremely insecure in that
situation. The handcuffing was exercised over the inmate patient to the
bed under a compelling situation in good faith for only a very brief time
by the correctional guard Debashis Roy to secure the life of the inmate
patient from others and to secure the life of the inmate patient also from
self injury and to restrain the possible escape of the inmate patient with
the help of the gathered mob."
It has been averred that disciplinary proceedings have been initiated
against the erring officers, namely, Debashis Roy, who was deputed to guard the
under trial prisoner, and T.R. Bhutia, the Superintendent of the concerned
correctional home, who were instrumental in handcuffing Santosh Sahani. It has
further been pleaded in the affidavit that there were instances of escaping of
under trial prisoners from North Bengal Medical College and Hospital in the
recent past which necessitated such action.
Mr. Mukhopadhyay, learned advocate appearing for the petitioner
submitted that the allegation of chaining Santosh Sahani in the hospital during
judicial custody has been admitted. Justification for such act of chaining as
disclosed in the affidavit of the State is not convincing and is violative to the law
declared by the apex Court in the case of Prem Shankar Shukla Vs. Delhi
Administration, AIR (1980) SC 1535, Sunil Gupta & Ors. Vs. State of Madhya
Pradesh & Ors., (1990) 3 SCC 119, Citizen for Democracy through its President
Vs. State of Assam & Ors., AIR 1996 SC 2193.
He, therefore, prayed that the writ petition be allowed and adequate
compensation will be paid to the victim. He also relied on D.K. Vs. State of West
Bengal (1997) 1 SCC 416 in support of his contention.
Learned counsel appearing for the State, while admitting the fact of
chaining of the under trial prisoner, strenuously argued that circumstances
necessitated such an act inasmuch as a mob had gathered around the medical
ward and there was a chance of his escape. He referred to various paragraphs in
Prem Shankar Shukla's judgement in support of his contention that under
compelling circumstances handcuffing was justified.
In Prem Shankar Shukla Vs. Delhi Administration, AIR 1980 SC 1535, a
three Bench of the Supreme Court was called upon to decide the validity of Rule
6.22 of Punjab Police Rules, 1934 which laid down provisions for handcuffing of
special category prisoners. While declaring such provision to be unconstitutional,
the apex Court observed as follows :
"20. This collection of handcuff law must meet the demands of
Arts. 14, 19 and 21. In the Sobraj case the imposition of bar
fetters on B, 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."
The apex Court thereafter laid down the rare exceptions to the rule against
handcuffing in the following words :‐
"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
policemanʹs 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.
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
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 under‐
trial 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 prisoner in their charge, indifferently keeping them
company assured by the thought that the detainee is under ʹironʹ
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, or desperate behaviour, geared to making good his escaped
alone will be a valid ground for 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 Art. 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 Art. 21 which insists upon fairness, reasonableness
and justice in the very procedure which authorises stringent
deprivation of life and liberty. The ratio in Maneka Gandhiʹs case
and Sunil Batraʹs ease (supra), read in its proper light, leads us to
this conclusion."
Similar view against handcuffing has been expressed in Sunil Gupta &
Ors. Vs. State of Madhya Pradesh & Ors., (1990) 3 SCC 119 wherein the
Supreme Court held as follows :
"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'.
From the discussion made above, we have no compunction
in arriving at a conclusion that in the present case, the escort
party without any jurisdiction had handcuffed the petitioners on
April 22, 1989 on both occasions i.e. when taking the petitioners 1
and 2 from the prison to the court and then from the court to the
prison. Hence, we direct the Government of Madhya Pradesh to
take appropriate action against the erring escort party for having
unjustly and unreasonably handcuffing the petitioners 1 and 2 on
April 22, 1989 in accordance with law."
In Citizen for Democracy through its President Vs. State of Assam &
Ors., AIR 1996 SC 2193 the Supreme Court crystallized the law against
handcuffing as follows :
"3. The law declared by this Court in Shuklaʹs case and Batraʹs
case is a mandate under Articles 141 and 144 of the Constitution
of India and all concerned are bound to obey the same. We are
constrained to say that the guidelines laid down by this Court
and the directions issued repeatedly regarding handcuffing of
under‐trials and convicts are not being followed by the police,
jail authorities and even by the subordinate judiciary. We make it
clear that the law laid down by this Court in the above said two
judgments and the directions issued by us are binding on all
concerned and any violation or circumvention shall attract the
provisions of the Contempt of Courts Act apart from other penal
consequences under law."
"14. This Court in Batraʹs case and Shuklaʹs case elaborately dealt
with the extreme situation when the police and jail authorities
can resort to handcuffing of the prisoners inside and outside the
jail. It is a pity that the authorities have miserably failed to
follow the law laid down by this Court in the matter of
handcuffing of prisoners. The directions given by this Court are
not being followed and are being treated as a pious declaration.
We take judicial notice of the fact that the police and the jail
authorities are even now using handcuffs and other fetters
indiscriminately and without any justification. It has, therefore,
become necessary to give binding directions and enforce the
same meticulously."
It is, therefore, clear that handcuffing of a under trial prisoner is not only
unconstitutional but a grave act of deprivation of dignity to an individual
resulting in infraction of the fundamental rights guaranteed under Articles 14
and 21 of the Constitution of India.
In the facts of the case, it is admitted that the under trial prisoner Santosh
Sahani, a student leader, who had no criminal antecedents was put on iron
fetters while lying ill in the hospital bed.
The reason which has been canvassed as an excuse for putting Santosh in
chains in the hospital bed is the likelihood of his escape from the hospital as a
mob had gathered around the hospital and that there was also a chance of self‐
inflicted injury. No records have been placed before us evidencing
contemporaneous endorsement of such reasons or any permission from the
judicial authorities in that regard. It has also been urged that such chaining may
be attributable to the lack of knowledge on the part of the law enforcement
officials who were entrusted with the duty of guarding the under trial prisoner,
howsoever flimsy it may be.
The aforesaid reasons as canvassed by the respondent State falls for below
the strict standard laid down by the apex Court as rare exceptions to the rule
against handcuffing. It is not a case where the under trial prisoner was a dreaded
criminal with propensity of violence or abscondence. No concrete proof of such
proclivity could be established by the respondent State. On the other hand, on
the specious excuse that a large mob had gathered around the hospital, the under
trial prisoner was chained.
Learned counsel for the State strenuously sought to justify such action as
the only alternative to protect the under trial prisoner and/or to prevent his
escape. Such agreement must meet its waterloo in the emphatic negation of such
theory by the apex Court in Citizen for Democracy (supra), as follows :‐
" 15. We have elaborately narrated the facts of the present case.
We are of the view that there is no basis whatsoever for drawing
an inference that the seven detenus who were lodged inside the
ward of a hospital were likely to escape from custody. The
antecedents of the detenus are not known. There is nothing on
the record to show that they are prone to violence. General
averments that the detenus are hard‐core activists of ULFA and
that they are accused of terrorists and disruptive activities,
murder, extortion, holding and smuggling of arms and
ammunition are not sufficient to place them under fetters and
ropes while lodged in a closed ward of the hospital as patients.
Security guards were posted outside the ward. It is not disputed
that while in jail the detenus were not handcuffed. They cannot
be in a worst condition while in hospital under treatment as
patients. In any case to safeguard any attempt to escape, extra
armed guards can be deployed around the ward of the hospital
where the detenus are lodged. The handcuffing and in addition
tying with ropes of the patient‐prisoners who are lodged in the
hospital is, the least we can say, inhuman and in utter violation of
the human rights guaranteed to an individual under the
International Law and the law of the land. We are, therefore, of
the view that the action of the respondents was wholly
unjustified and against law. We direct that the detenus in case
they are still in hospital be relieved from the fetters and the ropes
with immediate effect"
It is the bounden duty of the State to achieve the constitutional mandated
standards of treatment of under trial prisoners and uphold the dignity of the
individual. Dignity of the individual is an avowed pledge in our Preamble and
that 'procedure established by law' for deprivation of personal liberty must not
be cruel, inhuman or degrading is an non‐negotiable basic human right
engrafted in Article 21 of the Constitution of India. These constitutional
imperatives cannot be whittled down on vague and non‐specific security
concerns, or the other administrative deficiencies.
To permit such a course would tantamount to encouraging recidivistic
tendencies in the realm of human rights jurisprudence resulting in the eclipse of
the basic standard of civilized treatment to under trial or other prisoners.
One cannot lose sight of the memorable words of the apex Court in the
case of Joginder Kumar Vs. State of U.P. & Ors. (1994) SCC (Cri.) 1172, "The
quality of a nation's civilization can be largely measured by the methods it
uses in the enforcement of criminal law." (para 10)
The State must leave up to its highest commitments, as enshrined in the
Constitution, or fall behind the civilizational progress towards a better and just
social order.
We are surprised at the desperate submission made by the learned
counsel for the State that the person in charge was ignorant and therefore unable
to understand the grave implications of his conduct of chaining the ailing
prisoner. Such conduct on the part of State officials is unpardonable and a blatant
violation of the constitutional mandate of a fair, just, unreasonable, non‐arbitrary
and non‐oppressive procedure of law relating to deprivation of liberty. Breaches
of such nature cannot be condoned on the excuse of lack of awareness and
sensitization. It is for the State to sensitize its personnel, particularly, those
empowered with plenary powers of arrest and detention of prisoners.
Accordingly, we are of the view that the act of the State for chaining the
under trial Santosh Sahani to the hospital bed at North Bengal Medical College
on 16.04.2013 is unconstitutional, arbitrary, unreasonable and violative of his
fundamental rights as guaranteed under Articles 14, 19 and 21 of the
Constitution of India.
It is settled law that when the action of the State and/or its officials results
in a patent violation of the fundamental rights of an individual as guaranteed
under the Constitution and that the individual is subjected to cruel, inhuman and
degrading treatment in custody, he is entitled to compensation in the public law
domain. [See D.K. Basu Vs. State of West Bengal (1997) 1 SCC 416, Nilabati
Behera Vs. State of Orissa, (1993) 2 SCC 746]
Grant of such compensation in the public law domain is in the nature of a
token acknowledgement of the blatant breach of the fundamental rights of the
under trial prisoner in our constitutional scheme and is in addition to any other
remedy available to him under the ordinary law of the land.
Accordingly, we direct the State to pay compensation of Rs. 15,000/‐
(Rupees Fifteen Thousand) only to the prisoner, Santosh Sahani, whose
fundamental rights were so grossly violated. Such compensation shall be made
within a month from date. The State shall be at liberty to recover the said amount
from the erring officials who had perpetrated such infraction on the under trial
prisoner after giving adequate opportunity of hearing to them.
As we have been informed that departmental proceedings have been
initiated against the erring officials, we refrain from initiating contempt
proceeding against them in the light of the ratio laid down by the apex Court in
Citizen for Democracy (supra).
However, to ensure that a similar breach of constitutional commitments in
the matter of treatment of prisoners do not occur in the future and bearing in
mind the ratio of the apex Court in Citizen for Democracy (supra), we direct the
Director General of Police, State of West Bengal, Principal Secretary, Department
of Correctional Administration, State of West Bengal, Superintendents of all
Correctional Homes in the State of West Bengal, Superintendents of Police and
Commissioners of Police in all districts/Commissionerates of Police, State of West
Bengal and all members of Police and/or Prison Administration to follow and/or
ensure the compliance of these guidelines :
(i) As a rule, handcuffs or other fetters like chains, etc., shall not be used
on under trial or convicted prisoners while in jail/correctional homes, in
medical institutions or other institutions while in custody or during
transportation/transit from one place to another, including transportation from
one correctional home to another or to court and back. The police and/or
correctional home authorities, on their own, shall have no authority to direct
handcuffing of any inmate of a correctional home while he is in such custody
or during his transportation from one place to another.
(ii) Where the police or the jail/correctional home 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 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.
(iii) 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 hand‐cuffed unless special orders in that respect
are obtained from the Magistrate at the time of the grant of the remand.
(iv) When the police arrests a person in execution of a warrant of arrest
obtained from a Magistrate, the person 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.
(v) Where a person is arrested by the police without warrant the police officer
concerned may if he is satisfied, on the basis of the aforesaid guide‐lines, 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 there after can only be under the orders of the Magistrate
as already indicated by us.
(vi) We direct all ranks of police and the prison administration to meticulously
obey the above mentioned directions. Any violation of any of the directions
issued by us by any public official attached to police or prison administration
shall be summarily punishable under the Contempt of Courts Act apart from
other penal consequences under law.
(vii) State administration is directed to circulate these guidelines in English
and in vernacular language to all members of police and prison administration
for their knowledge and effective implementation.
(viii) Principal Secretary, Correctional Home Administration, and the Director
General of Police, State of West Bengal are directed to arrange for in house
training sessions so as to educate train and sensitize the officials of police and
correctional home administration so as to ensure the aforesaid directives are
rigorously implemented.
Registry is directed to forward copy of this order to Principal Secretary,
Department of Correctional Administration, State of West Bengal, Director
General of Police, State of West Bengal, Superintendents of all Correctional
Homes, Superintendents of Police and/or Commissioners of Police of all districts,
Commissionerates of Police respectively in the State of West Bengal for necessary
compliance.
(Joymalya Bagchi, J.) (Arun Mishra, Chief Justice)
P.A. to J. Bagchi,J.
