Patna High Court
Akhilesh Kumar Singh vs The State Of Bihar on 18 January, 2017
Author: Nilu Agrawal
Bench: Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8549 of 2014
Arising Out of PS.Case No. -302 Year- 2013 Thana -PIRBAHOR District- PATNA
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Akhilesh Kumar Singh, S/O Late Sudama Singh, Resident of Lilabarti Apartment Flat No.-701, Near Alpana Market, Police Station- S.K. Puri, District- Patna .... .... Petitioner Versus The State of Bihar .... .... Opposite Party =========================================================== Appearance :
For the Petitioner : Mr. Rama Kant Sharma, Sr. Advocate Mr. L.K. Sharma, Advocate Mr. Santosh Kr. Pandey, Advocate Mr. Amresh Kumar, Advocate For the Opposite Party : Mr. Atul Chandra, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. NILU AGRAWAL C.A.V. JUDGMENT Date: 18-01-2017 Heard learned counsel for the petitioner and learned APP for the State.
2. The present application has been filed under Section 482 of the Code of Criminal Procedure for quashing of the order dated 29.08.2013, passed by Sri Anil Kumar Ram, learned Judicial Magistrate, 1st Class, Patna in Pirbahore P.S. Case No. 302/13 whereby the process has been directed to be issued after cognizance being taken for the offences punishable under Sections 353, 504 and 506 of the Indian Penal Code.
3. The facts of the case is that one Ashok Mishra, ASI-cum-Incharge of Beur Jail Hazat submitted a written report Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 2/11 addressed to the Judicial Magistrate, 1st Class, Patna, alleging therein that the petitioner being a prisoner in connection with Mahila P.S. Case No. 11/13 dated 12.04.2013 was brought from Beur Hazat to be produced before the learned Magistrate and when another constable Ambedkar Choudhary tried to handcuff him then the petitioner resisted handcuffing and being an ADM did not allow himself to be handcuffed. Upon being asked to allow handcuffing he started abusing them and also threatened of dire consequences.
4. Sri Rama Kant Sharma, learned Senior Counsel for the petitioner submitted that the present proceeding against the petitioner is nothing but an abuse of the process of law and if the same is allowed to continue it will lead to gross miscarriage of justice as by a number of judicial pronouncements handcuffing of a prisoner has been held to be violative of Articles 14, 16 and 21 of the Constitution of India and only in rare cases and on grave charges and on very special situations the application of irons could have been used. The case of the petitioner was not of such a kind as he was a prisoner in relation to a matrimonial case lodged by his wife. He further submits that the ingredients of offence under Section 353 I.P.C. is completely lacking, as in the present case the petitioner has not obstructed any public servant from discharging his public duty and he has neither assaulted nor used criminal force and on the basis of false and Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 3/11 concocted materials the present case has been instituted. He further submits that the ingredients of offence under Section 504 I.P.C. is also not attracted in the present case as there was no intentional insult caused by the petitioner with intention to provoke breach of peace as the petitioner being a public servant had opposed handcuffing while he was brought from Beur Hazat to the court. Even otherwise, he submits that in the matrimonial case filed by his wife he has been granted privilege of bail by this Court on 05.08.2013 in Cr. Misc. No. 27040 of 2013.
5. Learned counsel appearing for the State was granted five weeks time by earlier order of this Court in the aforesaid case on 30.04.2014 to file counter affidavit, but when the matter was taken up on 18.11.2016 learned APP for the State although had appeared but no counter affidavit has been filed till date. However, learned counsel for the State submitted that since the petitioner was an accused in the matrimonial case and was brought from the Hazat to be produced before the learned Judicial Magistrate had resisted from being handcuffed and had resorted to argument and abuse, hence, opposes quashing of the order dated 29.08.2013 by which cognizance has been taken against the petitioner for offences punishable under Sections 353, 504 and 506 of the Indian Penal Code and submits that this application is fit to be dismissed.
Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 4/11
6. Having heard the parties and perused the record, I find that the offences punishable under Section 353 I.P.C. is an assault or criminal force to deter a public servant from discharge of his duties. So far as offence under Section 504 I.P.C. is concerned, it is an intentional insult with intent to provoke breach of peace. Sections 353 and 504 of the Indian Penal Code is quoted hereinbelow :
"Section 353. Assault or criminal force to deter public servant from discharge of his duty.- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 504. Intentional insult with intent to provoke breach of the peace.- Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 5/11
7. Having perused the allegations made in the First Information Report, there was some verbal resistance by the petitioner who did not allow himself to be handcuffed and the allegation is of resistance which was followed by use of abusive language. There was no assault or criminal force nor there was any intent to provoke breach of peace, hence, ingredients of offence under Sections 353 and 504 I.P.C. is not attracted against the petitioner.
8. Now the second question, whether while being taken from Beur Hazat to the court of Judicial Magistrate handcuffing or application of irons on the petitioner is contrary and violative of Articles 14, 19 and 21 of the Constitution? The Apex Court, in the case of Sunil Batra Vs. Delhi Administration and others etc. since reported in 1978 Cri.LJ 1741 wherein Sunil Batra was sentenced to death punishment and was behind the prison manacled by irons, has held that the convicts are not wholly denuded of their fundamental rights. Conviction for a crime does not reduce the person into a non- person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment is conditional upon the observance of the procedural safeguards. The relevant extract at paragraph 54 is quoted hereinbelow :
"54. ------The necessary sequitur is that even a person under death sentence has human rights which are non-negotiable and even a dangerous Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 6/11 prisoner, standing trial, has basic liberties which cannot be bartered away."
9. The matter had been again dealt with by the Apex Court in the case of Prem Shankar Shukla Vs. Delhi Administration since reported in 1980 Cri.L.J. 930. Prem Shankar Sukla who, as a prisoner, lodged in Tihar jail, had sent a message to the Apex Court that in spite of the Court's order and directions in the case of Sunil Batra (supra) handcuffing was forced on him. The Apex Court had suo motu taken up the matter as a Writ of Habeas Corpus and at paragraph 23 of the said judgment held thus :
"23. Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Enclopaedia Britannica, Vol II (1973 Edn.) at p. 53, states „Handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment‟. The three components of „irons‟ force on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 7/11 humiliatingly and to vulgarise the viewers also. Irons straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under-trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Articles 14 and 19 that when 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, (AIR 1978 SC 1675) (supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping."
10. In yet another case of Citizens for Democracy through its President Vs. State of Assam and others since reported in (1995) 3 SCC 743 the Apex Court had come down heavily on the police administration wherein Mr. Kuldeep Nayar, an eminent journalist (as President of Citizens for Democracy) wrote a letter to Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 8/11 the Apex Court stating therein that a few days ago when he went to the government hospital in Guwahati, he found seven TADA detenus put in one room, handcuffed to their bed in spite of the room being locked with bars and policemen standing outside with guns. The said letter was treated by the Apex Court under Article 32 of the Constitution of India. The Apex Court has discussed the case of Sunil Batra (supra) and Prem Shankar Sukla (supra) and has observed that save in rare cases of concrete proof regarding proneness of the petitioner to violence, his tendency to escape, he being so dangerous/ desperate and no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner if such prayer be made before the Magistrate. The Apex Court has, in fact, issued certain directions in paragraphs 18, 19, 20 and 21, which is quoted hereinbelow :
"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 from a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 9/11 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 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 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."
11. From the allegations made in the present First Information Report, the petitioner being in the rank of ADM, no such exceptional or rare case of concrete proof of the petitioner resorting to violence, his tendency to escape and being so dangerous is made out.
12. In the case of M.P. Dwivedi and others since reported in (1996) 4 SCC 152 the Apex Court in a suo motu petition has come down heavily on the police administration and had initiated Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 10/11 punishment for contempt against some of the officials responsible for handcuffing in the police administration of under-trial prisoners who were arrested activists of Khedut Mazdoor Chetna Sangath, who were being handcuffed while taking them from jail to court and vice-versa. The Apex Court had also proposed initiation of contempt against the Judicial Magistrate.
13. After considering the law laid down by the Apex Court in the case of Sunil Batra (supra), Prem Shankar Sukla(supra) and Citizens for Democracy (supra) as well as the suo motu contempt order in the case of M.P. Dwivedi and others (supra) it is amply clear that the case of the petitioner does not fall under the category of rare cases of grave charges wherein the detenu is prone to violence, tendency to escape and dangerous to the society. Moreover, the permission of the Magistrate has also not been taken to handcuff the petitioner.
14. Consequently and keeping in mind the decisions of the Apex Court hereinabove, initially, I was of the view of issuing contempt notices against the police officials intending to handcuff the petitioner while bringing him from Beur Hazat to the court of Judicial Magistrate, but taking a lenient view, in view of the judicial pronouncements of the Apex Court, allowing the further proceeding to continue in the court of the Magistrate in connection with Pirbahore Patna High Court Cr.Misc. No.8549 of 2014 dt.18-01-2017 11/11 P.S. Case No. 302/13 would amount to gross abuse of the process of the court and miscarriage of justice.
15. In the result, the application is allowed. Order dated 29.08.2013, passed by Sri Anil Kumar Ram, learned Judicial Magistrate, 1st Class, Patna as well as entire proceedings in connection with Pirbahore P.S. Case No. 302/13 is hereby quashed. There will be no order as to costs.
16. A copy of this order be sent by fax to the Chief Secretary, Government of Bihar and Director General of Police, Bihar, Patna to be circulated to all the Superintendent of Police and Jail Superintendents.
(Nilu Agrawal, J.) Rajesh/-
AFR/NAFR AFR CAV DATE 18.11.2016 Uploading Date 18.01.2017 Transmission 18.01.2017 Date