NAFEES Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a writ petition for directing the respondents not to handcuff the petitioner when he is brought to court or taken back to jail. The petitioner is at present detained in jail and is facing trial in certain cases.

(2.) WE have heard learned Counsel for the petitioner and learned A.G.A. at length. The law with regard to the handcuffing of the prisoners is well-settled. In Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526 : 1980 SCC (Cri) 815, which is the sheet anchor of the petitioner's case, it has been laid down as a rule that handcuffing or other fetters shall not be forced on the prisoner or undertrial prisoner ordinarily. The constitutional mandate is that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of custodian or escort. The only cricumstance which validates incapacitation by irons an extreme measure, is that otherwise there is no other reasonable way of preventing the escape in the given circumstances. The guideline which has been provided in this behalf in para 30 of the majority judgment in the above mentioned case may be extracted below :

(3.) THE case of Prem Shankar Shukla, cited above, has been noticed by the Supreme Court in subsequent cases in Sunil Gupta v. State of Madhya Pradesh (1990) 3 SCC 119. THE question was whether the handcuffing of certain persons who had staged a Dharna for a public cause was justified or not. After referring to the law laid down in the aforesaid, case, it was held on the facts that there was no reason for handcuffing them while taking them to Court from jail on a particular date. In this connection, it was observed that one should not lose sight of the fact that when a person is remanded by judicial order by a competent Court that person comes within the Judicial custody of the Court and taking of that person from a prison to the Court or taking from Court to the prison by the escort party is only under judicial orders of the Court. THErefore even if extreme circumstances necessitate the escort party to bind the prisoners in fetters, the escort party should record the reasons for doing so in writing and intimate the Court so that the Court considering the circumstances either approves or disapproves the action of the escort party and issues necessary directions. THE direction which was issued in the case of Sunil Gupta was that the Government of Madhya Pradesh may take appropriate action in the matter against the erring officials. In that case a prayer was also made for payment of adequate compensation and it was directed by the Court that it would be open to the petitioner to take appropriate action against the erring officials in accordance with law, if they are so advised and in that case the Court in which the claim is made can examine the claim not being influenced by any observation made in this Judgment. It may be mentioned that apart from the case of Sunil Batra v. Delhi Administration, (1980) 3 SCC 488, the case of Bhim Singh v. State of JandK, (1985) 3 SCC 677 was also referred to. THE Court, in the case of Bhim Singh, has observed that the police officers who are the custodian of law and order should have the greatest respect for the personal liberty of the citizen and should not flout the law by stooping to such bizarre acts of law-lessness.