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October 24, 2020 | Feroz Pathan

Legal provisions on handcuffing in India

The law relating to handcuffing in India therefore quintessentially revolves around liberal jurisprudence, procedural fairness and constitutional safeguards to dignity of individual as a citizen

 

The provision of handcuffing in India is of colossal importance in law relating to arrest. The Encyclopedia Britannica defines handcuffs and fetters as ‘Instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment’.  It has been in the eye of storm once again in wake of frequent fleeingof hardenedcriminals from police custody.  No rational mind can celebrate the police encounters following the escape of criminal from their hold. The contention of handcuffing needs to be looked through the lens of natural rights vis-à-vis social interests.

 

In our attempt to escape a mouse, we cannot let a camel to settle in. We cannot attribute the fleeing of these criminals to lack of handcuffing. It is the resultof inefficiency and weakness of law enforcement agencies. What If these criminals flee even after being handcuffed by adopting tactics of Feroz Khan as portrayed in the movie Qurbani? The then Chief Justice of  India, Y.V.Chandrachud upholding the rights of individuals as cornerstone of any civilization had said, “If civilization is not to perish in this country, it’s necessary to educate ourselves into accepting that , respect for rights of  individuals is the true bastion of democracy.” The role of courts is not only to do justice, but also to ensure that justice is being served. The law relating to handcuffing in India therefore quintessentially revolves around liberal jurisprudence, procedural fairness and constitutional safeguards to dignity of individual as a citizen.

 

Chapter fifth of the Code of Criminal Procedure,1973 deals with provisions related to the arrest of persons from section 41to 60 A. Section 41 deals with situations in which police may arrest without warrant. Section 42 deals with arrest on refusal to give name and address. Section 43 denotes situations where an arrest can be made by a private person and procedure to be followed on such arrest. Section 44 deals with circumstances under which an arrest can be made by an executive or judicial magistrate when an offence is committed in his/her presence. Section 46 underlines the manner in which arrest should be made. Section 47 enables a police officer to enter a place if he has a reason to believe that the person to be arrested has entered into that place. Section 48 provides for pursuit of offenders into other jurisdictions.

 

Section 49 of Cr.PC, however, provides that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”In view of foregoing discussions, the apex court has time and again reiterated that handcuffing is expressly violative of not only provisions of Cr.PC , but also of Article 14, 19 and 21 of  Indian Constitution. The fundamental rights of accused do not cease out rightly even if he is in police custody or judicial custody later.

In Prem Shankar Shukla v. Delhi Adminstration(1980) 3 SCC 526 , Justice V.R.KrishnaIyer emphatically stated that  - “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absence of fair procedure and objective monitoring to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21.  We must critically examine the justification offered by the state for this mode of restraint. Surely the competing claims of securing the prisoners from fleeing and protecting his personality from barbarity have to be harmonized.

 

It must be noted that much of what was held in Sunil Batra v. Delhi Administration; AIR 1978 SC 1675 was reinvigorated in Prem Shankar Shukla case later. In Sunil Batra case itself, the constitutional framework within which iron fetters can be put on a prisoner was set. Handcuffing should be resorted to only when there is ‘clear and present danger of escape’ breaking out the police control and for this there must be a clear material, not merely an assumption. The escorting authority must record simultaneously the reasons for handcuffing otherwise under Art 21, the procedure would beunfair and bad in law. Although police supports handcuffing as a measure to ensure that the dreaded criminal does not escape their custody, yet the apex court has categorically reiterated that handcuffingof prisoners without judicial consent is unconstitutional. It’s imperative for the escort party to obtain orders of court for the use of handcuffs. Handcuffing and parading of offenders is prohibited. If at all situation demands, the escort party shall have to record and intimate reasons for imposing fetters.

 

In Sunil Gupta v. State of Madhya Pradesh, (1990) 3 SCC 119, the petitioners were educated social workers and members of KisanAdivasiSanghatan, Kerela. They along with a large number of tribals had staged peaceful dharnas before the office of Block Development Officer demanding appointment of regular teachers in the schools located in tribal hamlets. The local police initiated criminal proceedings against them for offences punishable u/s 186 of IPC. After being remanded to judicial custody, they were taken to court from jail and back from court to the prison handcuffed by the escort party. It was held that this act of the escort party was violative of Art.21. There was no reason recorded by the escort party in writing for this inhuman act.

 

In Citizen for Democracy v. State of Assam, AIR 1996 SC 2193, the Supreme Court severely criticized the highhandedness of police for putting fetters and handcuffs on the prisoners in hospital. Supreme Court held that handcuffing and tying patient prisoners with ropes who were admitted in hospital for treatment was inhuman and utter violation of human rights. The Supreme Court also laid down express guidelines on handcuffing of prisoners in this case. Lambasting the law enforcing agencies for handcuffing without warrant, the apex court in Hardeep Singh v. State of  Madhya Pradesh , AIR 2012 SC 1751held that ‘there was no warrant for putting the appellant , a director of  ‘Deepika Coaching Centre’ under handcuffs. His handcuffing was without justification and has not only adversely affected his dignity as a human being but also led to tragic consequences like expiry of  his sister  after being shocked to see the photo of  his brother in handcuffs which was published in newspapers. To assuage the sufferings and humiliation undergone by the appellant, the court awarded him a compensation of rupees two lakhs to meet the ends of justice.

In Siddharam Satlingappa Mhetre v. State of  Maharashtra , AIR 2011 SC 312 , a case of instigating  the murder of a party worker , apex court held that  ‘every trial in which a person is accused of  a  non-bailable offence punishable with more than 3 years prison term shall be handcuffed is violative of Articles 14,19, and 21. The nature of accusations is not the criterion. The clear and present danger of escape breaking out of police control is the determinant.

 

In the light of above discussion , it can be concluded that handcuffs and fetters are not just instruments to secure arrest of offenders, but a humiliating and animalizing method that shatters every fabric of  human dignity.  Sensitization of police officers and investigating officers to imbibe upon them the importance of personal liberty vis-a’-vis social interests is needed in ambit of law relating to arrest. The law enforcement agencies must learn to maintain a fine balance between the personal liberty and social interests.

 

 (The Author is a budding lawyer at Delhi)

 

 

ferozpathanabc@gmail.com

 

 

 

 

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October 24, 2020 | Feroz Pathan

Legal provisions on handcuffing in India

The law relating to handcuffing in India therefore quintessentially revolves around liberal jurisprudence, procedural fairness and constitutional safeguards to dignity of individual as a citizen

              

 

The provision of handcuffing in India is of colossal importance in law relating to arrest. The Encyclopedia Britannica defines handcuffs and fetters as ‘Instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment’.  It has been in the eye of storm once again in wake of frequent fleeingof hardenedcriminals from police custody.  No rational mind can celebrate the police encounters following the escape of criminal from their hold. The contention of handcuffing needs to be looked through the lens of natural rights vis-à-vis social interests.

 

In our attempt to escape a mouse, we cannot let a camel to settle in. We cannot attribute the fleeing of these criminals to lack of handcuffing. It is the resultof inefficiency and weakness of law enforcement agencies. What If these criminals flee even after being handcuffed by adopting tactics of Feroz Khan as portrayed in the movie Qurbani? The then Chief Justice of  India, Y.V.Chandrachud upholding the rights of individuals as cornerstone of any civilization had said, “If civilization is not to perish in this country, it’s necessary to educate ourselves into accepting that , respect for rights of  individuals is the true bastion of democracy.” The role of courts is not only to do justice, but also to ensure that justice is being served. The law relating to handcuffing in India therefore quintessentially revolves around liberal jurisprudence, procedural fairness and constitutional safeguards to dignity of individual as a citizen.

 

Chapter fifth of the Code of Criminal Procedure,1973 deals with provisions related to the arrest of persons from section 41to 60 A. Section 41 deals with situations in which police may arrest without warrant. Section 42 deals with arrest on refusal to give name and address. Section 43 denotes situations where an arrest can be made by a private person and procedure to be followed on such arrest. Section 44 deals with circumstances under which an arrest can be made by an executive or judicial magistrate when an offence is committed in his/her presence. Section 46 underlines the manner in which arrest should be made. Section 47 enables a police officer to enter a place if he has a reason to believe that the person to be arrested has entered into that place. Section 48 provides for pursuit of offenders into other jurisdictions.

 

Section 49 of Cr.PC, however, provides that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.”In view of foregoing discussions, the apex court has time and again reiterated that handcuffing is expressly violative of not only provisions of Cr.PC , but also of Article 14, 19 and 21 of  Indian Constitution. The fundamental rights of accused do not cease out rightly even if he is in police custody or judicial custody later.

In Prem Shankar Shukla v. Delhi Adminstration(1980) 3 SCC 526 , Justice V.R.KrishnaIyer emphatically stated that  - “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over harsh and at the first flush, arbitrary. Absence of fair procedure and objective monitoring to inflict ‘irons’ is to resort to zoological strategies repugnant to Article 21.  We must critically examine the justification offered by the state for this mode of restraint. Surely the competing claims of securing the prisoners from fleeing and protecting his personality from barbarity have to be harmonized.

 

It must be noted that much of what was held in Sunil Batra v. Delhi Administration; AIR 1978 SC 1675 was reinvigorated in Prem Shankar Shukla case later. In Sunil Batra case itself, the constitutional framework within which iron fetters can be put on a prisoner was set. Handcuffing should be resorted to only when there is ‘clear and present danger of escape’ breaking out the police control and for this there must be a clear material, not merely an assumption. The escorting authority must record simultaneously the reasons for handcuffing otherwise under Art 21, the procedure would beunfair and bad in law. Although police supports handcuffing as a measure to ensure that the dreaded criminal does not escape their custody, yet the apex court has categorically reiterated that handcuffingof prisoners without judicial consent is unconstitutional. It’s imperative for the escort party to obtain orders of court for the use of handcuffs. Handcuffing and parading of offenders is prohibited. If at all situation demands, the escort party shall have to record and intimate reasons for imposing fetters.

 

In Sunil Gupta v. State of Madhya Pradesh, (1990) 3 SCC 119, the petitioners were educated social workers and members of KisanAdivasiSanghatan, Kerela. They along with a large number of tribals had staged peaceful dharnas before the office of Block Development Officer demanding appointment of regular teachers in the schools located in tribal hamlets. The local police initiated criminal proceedings against them for offences punishable u/s 186 of IPC. After being remanded to judicial custody, they were taken to court from jail and back from court to the prison handcuffed by the escort party. It was held that this act of the escort party was violative of Art.21. There was no reason recorded by the escort party in writing for this inhuman act.

 

In Citizen for Democracy v. State of Assam, AIR 1996 SC 2193, the Supreme Court severely criticized the highhandedness of police for putting fetters and handcuffs on the prisoners in hospital. Supreme Court held that handcuffing and tying patient prisoners with ropes who were admitted in hospital for treatment was inhuman and utter violation of human rights. The Supreme Court also laid down express guidelines on handcuffing of prisoners in this case. Lambasting the law enforcing agencies for handcuffing without warrant, the apex court in Hardeep Singh v. State of  Madhya Pradesh , AIR 2012 SC 1751held that ‘there was no warrant for putting the appellant , a director of  ‘Deepika Coaching Centre’ under handcuffs. His handcuffing was without justification and has not only adversely affected his dignity as a human being but also led to tragic consequences like expiry of  his sister  after being shocked to see the photo of  his brother in handcuffs which was published in newspapers. To assuage the sufferings and humiliation undergone by the appellant, the court awarded him a compensation of rupees two lakhs to meet the ends of justice.

In Siddharam Satlingappa Mhetre v. State of  Maharashtra , AIR 2011 SC 312 , a case of instigating  the murder of a party worker , apex court held that  ‘every trial in which a person is accused of  a  non-bailable offence punishable with more than 3 years prison term shall be handcuffed is violative of Articles 14,19, and 21. The nature of accusations is not the criterion. The clear and present danger of escape breaking out of police control is the determinant.

 

In the light of above discussion , it can be concluded that handcuffs and fetters are not just instruments to secure arrest of offenders, but a humiliating and animalizing method that shatters every fabric of  human dignity.  Sensitization of police officers and investigating officers to imbibe upon them the importance of personal liberty vis-a’-vis social interests is needed in ambit of law relating to arrest. The law enforcement agencies must learn to maintain a fine balance between the personal liberty and social interests.

 

 (The Author is a budding lawyer at Delhi)

 

 

ferozpathanabc@gmail.com

 

 

 

 

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