SHARMA, J. - (1.) HEARD counsel for the parties and perused the impugned order.
(2.) THE accused petitioners, 7 in numbers have been facing trial for offence under Sections 326 and 307 IPC etc. in the court of Additional Sessions Judge (Fast Track No. 1, Jhunjhunu one Kugal Singh, Sub Inspector, Police Lines, Jhunjhunu submitted an application dated 16. 4. 04 before the Trial Court stating therein two accused persons absconded from police custody when they were brought to the court on the date fixed i. e. , 14. 4. 2004 and prayed that to prevent incidents of absconding, permission be granted to handcuff all the accused persons. THE learned trial Judge granted permission on the application (Annex. 4) to handcuff the accused petitioners without assigning any reason. Again, on 26. 4. 04, one Vinod Kumar Head Constable, Guard Incharge Challani, Jhunjhunu submitted an application before the Trial Court alleging that the accused are involved in heinous crime and are notorious and they always remain in search of an occasion to abscond from police guard. In these circumstances, direction to fetter the accused petitioners was prayed for. THE learned Trial Court passed order on 26. 4. 2004 on the application (Annex. 6), itself, thereby granting permission to fetter the accused petitioners, without assigning any reason whatsoever. Under the above orders, the petitioners are forced to remain handcuffed and fettered, not only while they are produced before the court but in jail also, which resulted in creating sever problems in discharge of their routine functions. THE petitioners repeatedly made requests to the jail authorities to remove handcuffs and other fetters, but of no avail. However, the learned Trial Court vide order dated 21. 5. 2004 modified its earlier orders to the effect that handcuffs and other fetters should not be used while accused take bath, attend the call of nature and at the time of sleeping. In the aforesaid circumstances, the petitioners moved an application before the Trial Court praying therein that jail authorities be directed not to keep them handcuffed and fettered. The learned Trial Court vide its order dated 22. 6. 2004 dismissed the said application, inter-alia on the grounds that the petitioners are notorious and tried to escape from police custody. Learned counsel for the petitioners has strenuously contended that handcuffing is prima facie inhuman and it should not be used in routine. There is no allegation against the petitioners nor there is any report of the jail authorities to satisfy that there is clear and present danger of escape of the prisoners or they are desperado, rowdy or maniac. According to the learned counsel, there was no such material before the Trial Court so as to enable it to grant permission for handcuffing and other fetters. Likewise, the learned Trial Court has passed the impugned order purely on surmises and conjectures, thereby rejecting the petitioners' application for removal of handcuffing and other fetters. In support of his argument learned counsel has relied upon a decision of the Apex Court in Prem Shankar Shukla vs. Delhi Administration (1980 SCC (Cri) 815 ). Per contra, learned Public Prosecutor has supported the impugned order and has argued that in the facts and circumstances of the case, the Trial Court has rightly refused removal of handcuffs and other fetters. I have considered the rival submissions and have gone through the impugned orders and the case law cited at the bar. In Prem Shanker Shukla's case (supra), their Lordships of the Supreme Court had an occasion to deal with similar question and after elaborate discussion, their Lordships observed as under: " Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenue 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 Encyclopaedia Britannica, Vol. II (1973 Edn.) at page 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 `iron' 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 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, depotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps. Article 14 on the face. The minimal freedon of movement which even a detainee is entitled to under Article 19 cannot be cut down cruelty 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 desparate and the circumstances so hostile to safe keeping".
(3.) IN the case at hand, it appears from the record that petitioners are being handcuffed and fettered routinely and merely for the convenience of custodian or escort. Otherwise, the State and/or the jail authorities have not produced any material before the Trial Court to show that no other reasonable way of forbidding escape was available, the petitioners being so dangerous and desparate and the circumstances so hostile to safe keeping. IN my considered view, merely because a person is charged with grave or serious offences, the inference of escape proneness or desperate character does not follow and therefore, on that premise alone the prisoner cannot be handcuffed and fettered. For the reasons therefor, if the impugned order is allowed to stand it would amount to abuse of process of law and would cause injustice to the petitioners. In the result, this petition is allowed. The impugned order dated 22. 6. 2004 passed by the Trial Court is held to be patently illegal and is hereby quashed. However, it is observed that if the prosecution/jail authorities produce material before the Trial Court to show that the prisoners (petitioners) are violent, disorderly, obstructive or are likely to attempt escape and hence they being dangerous and desparate and the circumstances so hostile to safe keeping, the Trial Court shall consider the same and pass speaking order in accordidance with law laid down by the Apex Court. .;