S. N. Sahay, J. - (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 : "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 Article 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 Article 21. which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty. The ratio in Maneka Gandhi case and Sunil Batra case, read in its proper light, leads us to this conclusion." It has been further laid down in para 31 that the nature of accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. The operative portion as contained in para 38 of the majority judgment is 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 jail warder 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 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." In para 43 of the concurring Judgment delivered by his Lordship Hon'ble R.S. Pathak, J., as he then was, it has been observed that whether handcuffing or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody and not any other. It is a judgment to be exercised with reference to each individual case. His Lordship has proceeded on to make the following observations :- "The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision of the escorting authority midway to decide on imposing a restraint on the prisoner. Any prior decision of an external authority can be reasonably imposed on the exercise of that power. However one sector of supervisory jurisdiction could appropriately lie with the Court trying the accused and it would be desirable for the custodial authority to inform that Court of the circumstances in which, and the justification for imposing a restraint on the body of the accused. It should be for the Court concerned to work out the modalities of the procedure requisite for the purpose of enforcing such control."
(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. In another case, State of Maharashtra v. Ravikant Patil, (1991) 2 SCC 373 : 1991 SCC (Cri) 656, the matter was again considered. After referring to the earlier cases of Prem Shankar Shukla and Sunil Gupta, it was reiterated that prisoners are entitled to all constitutional rights and to be consistent with Articles 14 and 19 of the Constitution, handcuffs must be last refuge, as there are other ways for ensuring security. No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort.;