Patna High Court - Orders
Kumar Abhishek vs The State Of Bihar on 22 November, 2022
Author: Partha Sarthy
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11502 of 2022
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Kumar Abhishek
... ... Petitioner/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Kumar Abhishek (In Person)
For the Respondent/s : Mr.Prabhat Kr. Verma, AAG3
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
6 22-11-2022The petitioner who is an student of law has filed the instant public interest litigation praying for a direction to the respondent authorities under the Government of Bihar to ensure that no handcuffing of accused persons, convicted persons is done by the police officials during their appearance in Court as also elsewhere without the authority of law. It is contended by the petitioner that contrary to the guidelines issued by the Hon'ble Supreme Court in the case of Citizens for Democracy through its President versus State of Assam and Ors. [(1995) 3 SCC 743], the under trial persons/convicted persons in the State of Bihar on being taken from the jail to the Court and back are consistently being handcuffed by the police personnel and the same is in teeth of the judgment referred to Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 2/11 above.
In support of his contention, the petitioner appearing in person refers to the photographs brought on record as Annexure- 2 series to his application.
This Court by its order dated 12.8.2022 while issuing notice had directed the Inspector General of Prisons, Government of India, Patna (respondent no.2) to file his personal affidavit.
A counter affidavit has been filed on behalf of the Inspector General of Prisons, Government of Bihar, Patna (respondent no.2) as also a separate counter affidavit has been filed on behalf of the Director General of Police, Bihar which has been sworn by the DIG, Human Rights, Bihar.
On the facts of the case as stated in the petition by the petitioner, respondent no.2, IG (Prisons), Bihar in paragraph no. 9 of his counter affidavit states as follows:
"9. That no any prisoner convicted or under trial is forced to handcuffing or using fetters while transporting from one Jail to another Jail. The Home Department (Jail) is strictly complying the directions made by Hon'ble Supreme Court of India in Citizens for democracy through his President VS State of Assam and Ors while transporting a prisoner from one Jail to another."
Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 3/11 Further respondent no.5 in his counter affidavit states that instructions and guidelines have been given by the Police, Headquarters as contained in memo no.3723 dated 10.6.2015 to ensure effective implementation of the directions of the Hon'ble Supreme Court and for organizing sensitization programmes at the level of police stations. It has further been stated that the Bihar, Human Rights Commission vide its letter no.17 dated 22.5.2022 has also sent letter giving suggestions that the police headquarters may consider issuing comprehensive guidelines for security on the issue. It has been stated that in the past also guidelines have also been issued to all IGs/ DIGs/SSPs/SPs for not handcuffing minors. Further that reasons for handcuffing must be clearly mentioned in the station diary, on the arrested persons being produced before the Court, the Court's permission be taken before handcuffing him/her. It has further been stated in the affidavit that further instructions have been given to all higher authorities of the Police Department vide letter dated 19.9.2022 for effective implementation of the directions of the Hon'ble Supreme Court.
Having heard learned counsel for the parties and on having going through the materials on record it transpires that though statements have been made in the counter affidavits filed on behalf of the respondent no.2 and respondent no.5 with Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 4/11 respect to instructions having been issued for effective implementation of the directions contained in the judgment of the Hon'ble Supreme Court in the case of Citizens for Democracy versus State of Bihar, however it may be noted here that so far as the allegations made in the petition (along with supporting photographs) are concerned to the effect that inspite of the judgment of the Hon'ble Supreme Court the Bihar police continues to use handcuffs on the under trial/convicted prisoners without any authority of law, there is no denial to the same by either of the two respondents.
The issue with respect to handcuffing as also placing the prisoners under fetters came up before the Supreme Court in a number of cases including Prem Shankar Shukla versus Delhi Administration [(1980) 3 SCC 526], Sunil Batra versus Delhi Administration [(1978) 4 SCC 494] and Citizens for Democracy versus State of Assam & Os. [(1995) 3 SCC 743]. Paragraph nos. 1, 2 and 3 of judgment in case of Citizens for Democracy are relevant which are as follows:.
"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 jailwarder - 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 Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 5/11 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."
Ordained this Court - speaking through V.R. Krishna Iyer, J. - in Prem Shankar Shukla v. Delhi Admn.
2. In Sunil Batra Etc. v. Delhi Admn. this Court pronounced that undertrials shall be deemed to be in custody, but not undergoing punitive imprisonment. Fetters, especially bar fetters, shall be shunned as violative of human dignity, both within and without prisons. The indiscriminate resort to handcuffs when accused persons are taken to and from court and the expedient of forcing irons on prison inmates are illegal and shall be stopped forthwith save in small category of cases where an undertrial has a credible tendency for violence and escape, a humanely graduated degree of 'iron' restraint is permissible if - other disciplinary alternatives are unworkable. The burden of proof of the ground is on the custodian. And if he fails, he will be liable in law. Reckless handcuffing and chaining in public degrades, puts to shame finer sensibilities and is a slur on our culture.
3. The law declared by this Court in Shukla case and Batra 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 Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 6/11 handcuffing of undertrials 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 abovesaid 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.
Further in paragraph nos. 10 and 11 of its judgment in the case Citizen for Democracy (supra) the Hon'ble Supreme Court held as follows:
"10. This Court in Shukla's case categorically held that handcuffing is prima facie inhuman, unreasonable, arbitrary and as such repugnant to Article 21 of the Constitution of India. To prevent the escape of an undertrial is, no doubt, in public interest, 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."
11. This Court in Shukla case speaking through Krishna Iyer, J. laid down the law as under: (SCC pp.537-38, paras 23 and 25) "Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 7/11 feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopedia Britannica, Vol. II (1973 Edn.) at p. 53 states 'handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment.' The three components of 'irons' forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an undertrial prisoner ordinarily. ... We lay down as necessarily implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (see Sunil Batra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe keeping....
But even here, the policeman's easy Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 8/11 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."
The Hon'ble Supreme Court in its aforesaid judgment in the case of Citizens for Democracy (supra) proceeded to conclude as follows:
"16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or undertrial - 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 handcuffing 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 Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 9/11 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.
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.
21. We direct all ranks of police and the prison authorities to meticulously obey the above mentioned Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 10/11 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.
22. Copy of this judgment be sent to Government of India, Ministry of Home Affairs and to all the State and Union Territory Governments through Home Secretaries."
Thus from reading of the judgment in the case of Citizens for Democracy (supra) quoted to a great extent hereinabove, it would transpire that the Hon'ble Supreme Court has not only deprecated handcuffing as also putting the prison inmates in fetters but has clearly laid down the guidelines to be followed by the jail authorities in this context. It has further proceeded to give specific directions to the police and jail authorities and has observed to the extent that any violation of any of the directions issued by the police or the jail establishment would be punishable under the Contempt of Courts Act.
The petitioner in person has further filed in writing certain 'Suggestions for implementation of guidelines issued by the Hon'ble Supreme Court in Citizens For Democracy V. State of Assam (1995) 3 SCC 743 in the State of Bihar.' The same is taken on record.
Patna High Court CWJC No.11502 of 2022(6) dt.22-11-2022 11/11 In view of the materials brought on record by way of specific averments as also photographs, not denied by the respondent authorities, in the opinion of the Court, the same requires sensitization of the police as also all other authorities involved in the dispensation of justice and for which the Court is of the opinion that the Bihar State Legal Services Authority be added as a party in the instant application.
Let the Bihar State Legal Services authority through its Member Secretary, Buddh Marg, opposite Museum, Central Revenue Colony, Lodipur, Patna- 800001 be added as respondent no. 7 in the instant application. Office will make necessary corrections in the details of the parties both in the physical file as also the file saved electronically.
Issue notice to the newly added respondent no. 7 ie Bihar State Legal Services Authority through its Member Secretary for which the petitioner will serve two copies of the petition along with the web copy of this order in the office of the newly added respondent no.7 within one week.
Put up this application on 06.12.2022.
(Sanjay Karol, CJ)
Bibhash ( Partha Sarthy, J)
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