Karnataka High Court
Syed Shabbir Hussain And Ors. vs State Of Karnataka And Ors. on 20 March, 2003
Equivalent citations: ILR2003KAR2357, 2003(3)KARLJ395
ORDER Chandrashekaraiah, J.
The petitioners have filed these writ petitions seeking for a direction to respondents 1, 2 and 3 to hold an enquiry into the violation of constitutional right under Articles 21 and 22(2) of the Constitution of India and for payment of compensation of Rs. 5,00,000/- to each of the petitioners for putting handcuffs, chaining and treating them like animals, making them nude and being paraded from Police Station to Magistrate's House at Koppal on 20-11-1998 and for other reliefs.
2. The case of the petitioners is that they were arrested on 19-11-1998 and were produced before the Magistrate on 20-11-1998, i.e., after 24 hours and the further allegation of the petitioners is that when they were taken from the Police Station to the Magistrate Court they were handcuffed, chained and paraded in the street and they were made to remove all clothes except underwear. On these allegations, this Court by an order dated 16-6-1999 directed the 3rd respondent to hold an enquiry and submit a report within two weeks from the date of the order. Pursuant to the said direction 3rd respondent held the enquiry and submitted the report stating all the allegations made by the petitioners in the writ petitions are not correct and no illegality has been committed by the Police Officers. This Court having not accepted the said report, by an order dated 4-9-2000, referred the matter to the CBI for investigation and report. Pursuant to this order, the CBI, 7th respondent, has submitted the report on 2-3-2001. The finding in the report reads as follows.--
"(1) That the three petitioners were arrested by one R.N. Byrappa on 19-11-1998 between 1700 and 1900 hours but he showed their arrest in the records of police on 20-11-1998 at 1600 hours.
(2) That the three petitioners were taken through the streets of Koppal to the residence of the Magistrate on 20-11-1998 evening, tied with handcuffs and chains and were wearing briefs only at that time. The rest of the allegations allowed by the petitioners in their petition are not proved during the enquiry'.
3. Sri Billappa, learned Counsel for respondent 6 disputed the finding recorded by the CBI, saying that the report does not reflect the true facts and therefore, the same cannot be relied upon for the purpose of coming to the conclusion that the petitioners were not ill-treated and harassed.
4. The learned Government Pleader submits that the 3rd respondent has held a detailed enquiry and submitted the report holding that the allegations made by the petitioners in these petitions are not proved and on the other hand the police have not committed any illegality in the matter of following the procedure while investigation on the complaint made by one Bank Manager. It is further submitted that the report submitted by the 3rd respondent cannot be characterised as not a report disclosing the truth and therefore, there is no reason to rely upon the report submitted by the CBI.
5. The learned Counsel for the petitioners submits that CBI, after examining several witnesses and also after considering the records relating to the arrest of the petitioners, has rightly held that the 6th respondent has wrongly mentioned the date of arrest as 20-11-1998 even though petitioners were actually arrested on 19-11-1998. He further submits that the fact of handcuffing and parading in the streets of Koppal Town also has been proved on the basis of the statement of witnesses recorded by the CBI during the enquiry.
6. In view of these rival contentions the question that remains for consideration by this Court is,--
"Whether the report of the CBI is to be considered in order to hold that respondent 6 has not followed the procedure in the matter of mentioning the date of arrest, and handcuffing, chaining and parading the petitioners in the street of Koppal?"
7. Sri Billappa, learned Counsel for respondent 6 submits that the finding on the enquiry by the CBI is not on appreciation of the evidence and materials produced before it and therefore, the said report cannot be relied upon. No doubt there may be some inconsistency in the evidence adduced before the CBI so far as the entry of the date of arrest in the Station House Diary is concerned, the CBI has relied on the statement made by one Sri M.A. Mulla, then working as Deputy Superintendent of Police in the Department and has also relied on six independent witnesses for the purpose of coming to the conclusion that the arrest of the petitioners was on 19-11-1998 whereas, the entry in the Station House Diary shows the arrest is on 20-11-1998. The then Deputy Superintendent of Police, Sri M.A. Mulla, has stated in his statement before the CBI, that he has seen the petitioners being kept in the Police Station during his visit to the Police Station around 2355 hours on 19-11-1998 and asked the Police Inspector to record the arrest of the accused immediately. It is not the case of the police that Sri M.A. Mulla has not stated before the CBI in addition to the five independent witnesses that the petitioners were arrested on 19-11-1998. In view of this fact, the finding recorded by the CBI that the petitioners were arrested on 19-11-1998 but shown as 20-11-1998 in the Station Diary is correct. From this it is seen that the Police Officer in order to show that the petitioners were produced before the Magistrate within 24 hours from the date and time of the arrest have shown the date of arrest as 20-11-1998 instead of 19-11-1998.
8. The next point that is to be considered is whether:
In fact the petitioners were handcuffed, chained and paraded in the street or not.
The CBI in this connection have examined about 17 independent witnesses who in fact deposed that they saw the petitioners being taken to the residence of the Magistrate from Koppal Police Station through the streets in half naked condition with handcuff and tied with chains. No doubt, the CBI, has not relied on the evidence given by the Police Officers on the ground that they necessarily give evidence in support of the police since they are from the same department. But so far as 17 independent witnesses are concerned, there is no reason for the CBI, to disbelieve their statement because they all in one voice spoken to the fact that they were taken to the residence of the Magistrate on foot in half naked condition with handcuffs and tied with chains. If that is so, the Police Officer who has arrested the petitioners is expected to follow the procedure provided for in the Karnataka Police Manual.
9. Clause 1345, Sub-clause (4) reads as follows.--
"1345(4).--Undertrial prisoners and other accused persons 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 shall 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 Officers, or, in his absence, with the officer next below him in seniority. Whenever a Police Officer considers it necessary to use handcuffs and chains on these persons, he should record his reasons in writing for doing so. As far as possible, the police escort shall, in each case, be sufficiently strong to prevent such persons escaping or giving undue trouble".
10. From this it is clear that whenever a Police Officer consider it necessary to use handcuff and chain on the accused persons, he should record his reasons for doing so. In the instant case the 6th respondent who arrested and has taken the petitioners to the Magistrate's house from the Police Station has not recorded any reasons in the records of the Police Station for using handcuffs and chains.
11. Sri Billappa, learned Counsel for respondent 6 submits that even though there is an omission on the part of respondent 6 in not mentioning the reasons for arrest and handcuffing in the police records he disclosed the said facts which are necessary for handcuffing and parading in the remand application filed before the Magistrate. In the remand application no doubt it is stated that the petitioners have used all vulgar language and misbehaved and therefore they may be remanded to the police custody. These allegations may be relevant to consider whether the petitioners are to be remanded to police custody or not. But this will not exempt the Police Officer from discharging his duties as provided under the Police Manual. Further, these allegations are not sufficient to justify the action of the police to handcuff a person. No doubt on the facts and circumstances of a particular case the Police Officer in his discretion may handcuff a person concerned. The allegations against the petitioners are that they have committed an offence of unlawful assembly, dacoity and theft. These offences and the facts and circumstances in my opinion will not justify the handcuffing, chaining and parading from the Police Station to the Magistrate's house. Virtually handcuffing, chaining and thereafter parading in half naked condition amounts to treating the petitioners as animals. The animals are better treated than the way in which the petitioners were treated by respondent-police.
12. The learned Counsel for respondent 6 relied upon the decision in the case of Citizen for Democracy through its President v. State of Assam and Ors., and submits that the police officers are justified in arresting, handcuffing and chaining the petitioners since respondent 6 was satisfied in view of the irresponsible conduct of the petitioners. In my view even assuming that they have conducted in the manner that is not expected of from the petitioners the 6th respondent ought to have re corded the reasons for handcuffing, chaining in the police records. In the instant case as stated earlier he has not recorded any reasons justifying his action for using the said force against the petitioners in the absence of any evidence to show that the petitioners required the said treatment.
The Supreme Court in the case of Prem Shankar Shukla v. Delhi Ad ministration, and in the case of Sunil Batra v. Delhi Administration and Ors., AIR 1978 SC 1675, 1978 CriLJ 1741, ( 1978 ) 4 SCC 494, [ 1979 ] 1 SCR 392, have laid down the guidelines and issued directions regarding handcuffing of undertrials and convicts. But in the instant case no guidelines referred to in the above said judgment are followed. There fore, I am of the considered view that respondent 6 has virtually interfered with the liberty of the petitioners and thereby caused damage to their reputation in handcuffing and parading in the open streets. There fore, I am of the considered view that it is a fit case to award compensation in favour of the petitioners.
13. The next question that arises for consideration is which respondent is liable to pay the compensation. As per the report of the CBI, it is the 6th respondent who has arrested, handcuffed, chained and paraded the petitioners and therefore, if at all if any liability is to be fixed it is to be fixed on the 6th respondent only.
14. In the result, I pass the following order.--
Writ petitions are allowed with a direction to the 6th respondent to pay a sum of Rs. 15,000/- as compensation to each of the petitioners within three months from today.