To Handcuff or not - Dilemma before Police

The persons arrested by Law-enforcement Agencies and the Prisoners requiring to be produced before a Court, routinely require to be secured during transit. The arrest could be either in pursuance of a Warrant issued by Court or without a warrant in appropriate cases. In India, the basic law for arrest is laid down in Chapter V of The Code of Criminal Procedure 1973. The Code stipulates (Section 46) that the person making the arrest shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. For female arrestees there are special provisions. Section 49 of the Code further lays down that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Section 55A casts a duty on the person having the custody of an accused to take reasonable care of the health and safety of the accused. The Rules for securing the arrested person are contained in the State Police Manuals, mostly in Chapters dealing with the Police Station work or in Chapters dealing with Police Escorts.

As regards the attendance of prisoners for production before Court, the enabling provisions are contained in the Attendance of Prisoners Act 1955. The State Governments are empowered to make rules to carry out the provisions of this Act. However the practical position is that the Prison authorities handover the prisoners required for production before Court to the Police Escort Party at the Jail gate and then onwards it is the Police which is responsible for securing the prisoner till the prisoner is handed back to the jail or otherwise disposed off in accordance with Court orders. They follow the Rules relating to Escorts contained in the State Police Manuals.  It is these Rules and their implementation which has come to the adverse notice of Courts time and again.

Why do we need to secure the arrested person or the prisoner at all? Besides the most important reason which is clear by section 49 of the Code that it is to prevent his escape, there are other cogent reasons which are not apparent on the face of the issue. Most important is that unsecured arrested person is easy to be forcibly taken away not only by the well-wishers of the arrested person but by his arch enemies also. Secondly it is also important to distinguish the arrested person and prisoner from other persons in the Crowd that is so common during Transit through train, Bus and other public transport and also in the Court Premises. Their inter-mingling with the crowd and possibility of melting away in the melee is not desirable. In any case the arrested person should not be tempted to develop a feeling that there are opportunities galore for his easy escape. Target hardening needs to be conspicuous. There have also been cases where after arrest an unsecured prisoner tried to commit suicide by jumping out from the vehicle or train or cause hurt to himself.

All over the world, handcuffing is the preferred and most prevalent method of effecting arrest. While making arrest, not many countries make any concession from handcuffing even to women arrestees. In fact the copy-book method of handcuffing is to handcuff both the hands tied together from behind. The Law in most of the countries does not make a distinction on various methods of securing arrestee based on the gravity of offence. If arrest is to be made, it is mostly by immediate handcuffing. What is different from our country is the treatment after the Handcuffing. In most of the countries the arresting team has a vehicle ready at hand for carrying the arrestee to the Police Station and after conducting a mandatory body search the arrestee is immediately placed in the vehicle. The occasion for parading in full public view with handcuffs on, does not arise at all. Another difference is that of the material of which the Handcuff is made of. Nowadays a modern handcuff is no longer the traditional Metal Handcuff as normally used in our country. We also still use manila rope to hold on to the Handcuffed person making him no better than the spectacle of performing monkey with reins in the hand of the Madaari.

The issue of Handcuffing has come to be discussed in a number of cases in different High Courts and the Supreme Court of India. The following are some landmark cases on the subject of Handcuffing.

1.  Suo Motu Contempt Petition no. 10 of 1996 , CIV vs. Respondent (MP Dwivedi and others) 1996 SCC (1) 718 Decided on 8/1/1996 by a 3 Judge Bench

Contemnors were Supdt of Police Jhabua, SDPO Alirajpur, Town SI Alirajpur, SI Sendua, Head Const. Sendua PS, SDM Alirajpur, JM First Class Alirajpur

Issue was Handcuffing and Parading ( in 1992/93) the arrested members of Khedat Mazdoor Chetna Sangath working for upliftment of Tribals in District Jhabua,  in streets of Alirajpur and producing arrestees in handcuffs before the JMFC. The under-trials had been arrested for agitating on the construction of a Dam ( Sardar Sarovar Dam on River Narmada)

The handcuffing was sought to be justified in terms of MP Police Regulation Para 465 under the caption ‘the list of prisoners who must be handcuffed’. Further it was stated that the under-trials were likely to escape, and a large crowd collected could have forced their release.

Court ordered that MP Police regulations be suitably amended so as to take note of Judgment in Prem Shankar Shukla v. Delhi Administration’s case and ordered entries in Personal files of Contemnors about Supreme Court’s disapproval of their conduct in the case.

2. Prem Shankar Shukla v. Delhi Administration 1980 SCC 526

The under-trial prisoner had sent telegram to Supreme Court complaining about handcuffing while taking him to Court and back. While Delhi Administration pointed out the necessity of Handcuffing the petitioner as he was a crook wanted in a number of cases and could hoodwink the Escort party in escaping, the petitioner claimed that he was a ‘better class’ prisoner and deserved more respectable treatment as provided in Rule 26.21A of Punjab Police Rule.

Court ordered (29 April 1980,per Justice V.R. Krishnaiyar and on behalf of Justice Chinnappa Reddy and himself) that “the practice of Handcuffing as a routine be strictly stopped forthwith. They should be used only when the person is desperate, rowdy, or is involved in a non-bailable offence. There should be normally no occasion to handcuff persons occupying good social position in public life, or professionals like Jurists, Advocates, doctor, writers, educationists and well known journalists”. Court held that Handcuffing is prima facie inhuman, and therefore unreasonable, is over-harsh, and at first flush arbitrary.

Court further held that “the only circumstance which validates incapacitation by irons –an extreme measure- is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. Securing the prisoner being necessity of judicial trial, the State must take steps in this behalf. Heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances…. So it is that to be consistent with Articles 14 and 19 handcuffs must be the last refuge not the routine regimen. If few more Guards will suffice, then no handcuffs. If a close watch by armed policemen will do then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.”

The Court held that the provisions of Rule 26.21A and 26.22 of Chapter XXVI are untenable. The provision of Rule 26.22 was held to be violative of Article 14, 19 and 21. The Court followed Sunil Batra v. Delhi Administration and others. 1978 4 SCC 494 (fetters specially Bar-fetters be shunned, fetters /handcuffs should only be used if a person exhibits a credible tendency for violence or escape) and applied Maneka Gandhi v. Union of India 1978 2 SCR 621(ambit of personal liberty is wide)

Justice R.S. Pathak (concurring) after having read the judgment of brother judge sat forth his own views. He stated, “ Now whether handcuffs or other restraint should be imposed on a prisoner I a matter for the decision of the authority responsible for hi custody. It is a judgment to be exercised with reference to each individual case. It is for that authority to exercise its discretion, and I am not willing to accept that the primary discretion should be that of any other. The matter is one where the circumstance 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. I do not think that any prior decision of an external authority can be reasonably imposed on the exercise of that power. But I do agree that thee is room for imposing a supervisory regime over the exercise of that power.”He suggested that the “Court concerned could be informed by custodial authority and that court could work out the modalities and whether to handcuff or not could be left to be dealt with the Magistrate in light of his observations”.

3.  Sunil Gupta and others vs. State of Madhya Pradesh and others 1990 SCC(3) 119 decided on 02/05/1990

The issue was whether the Escort party followed the instructions for Handcuffing as contained in Madhya Pradesh Police Regulation Chapter VII Part III Rule 465-Prisoners-handcuffs-use of- as at all permissible. This Rule provides that ‘when a prisoner is to be taken from Court to Jail or Jail to court in the custody, the Magistrate or the Jail Superintendent should give instructions in writing as to whether the prisoner will be handcuffed or not and the Escort commander shall follow the instructions. Further even if ‘the instructions are for not to handcuff the prisoner  and thereafter due to some reasons if the Escort commander feels that it is necessary to handcuff the prisoner, he would do so inspite of the instructions to the contrary.

In the instant case, Sunil Gupta and others as members of ‘Kisan Adivasi Sangthan Kesala’,Hoshangabad , staged  ‘Dharna’ demanding regular posting of Primary school teachers on regular basis in a particular school and were arrested for offence under Section 186 IPC ( a bailable section) and some other related cases and remanded to Jail as they refused to go on Bail. They were produced before the Court from Jail and were handcuffed during the journey. On return journey they were again handcuffed and taken back. No order of Magistrate or Jail Supdt was obtained by the Escort, as mandated by the Regulation. The explanation that the handcuffing was done in as after pronouncement of judgment on their conviction the petitioners got agitated , turned violent and shouted slogans outside and inside the court and in such turbulent circumstances ,the escort party felt that it was necessary to handcuff the prisoners did not cut ice with the Supreme Court. It found holes in the assertion and the explanation unconvincing.

The Court (per Justice Pandyan S.R. for Justice Jayachandra Reddy and self) held that the Handcuffing was unjustified and recorded its disapproval. The Government of Madhya Pradesh was directed to take appropriate action against the erring escort party for unjustly and unreasonably handcuffing petitioners in accordance with law. It said that “even if the 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 issue necessary directions”.

Previous rulings of Prem Shankar Shukla, Bhim Singh, Maneka Gandhi, Sunil Batra were referred to.    

4. Citizens for Democracy vs. State of Assam and others

1995 (3) SCC 743

Seven TADA Detenues activists of ULFA   undergoing medical treatment were lodged in GMCH special ward tied to their hospital Bed with Handcuff and Rope so as have mobility within the room but preventing their escape.  The State Government provided details of previous escape/rescue of Terrorists from 1991 to 1994, from Police/judicial Custody, including escape of 7 from GMCH itself.   The contention of the government was that chances of escape increased when the detenues were not handcuffed.

The Court (per Justice Kuldip Singh for Justice N Venkatachala and self) viewed that there was no material to draw inference that the detenues were likely to jump jail or break out of custody.   … The antecedents of the detenues are not known. There is nothing on the record to show that they are prone to violence. General averment that the detenues are hard core activists of ULFA … are not sufficient to place them under fetters and ropes while lodged in closed ward of the hospital as patients. It is not disputed that while in jail the detenues were not handcuffed. They cannot be in worst condition while in hospital under treatment as patients.  … The handcuffing and in addition tying with ropes of the patient prisoners who are lodged in the hospital is the least we can say, inhuman and in utter violation of the Human right guaranteed under the International Law and the law of the land. We are therefore of the view that the action of the Respondents was wholly unjustified and against the law.

The Court then laid down that

(1) As a rule handcuffs or other fetters shall not be forced on a prisoner-convict or under-trial-while lodged in a jail or while transporting or in transit from one jail to another or from jail to Court and back. The police and the jail authorities, on their own, shall have no authority to direct the hand-cuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back.

(2) Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence,’ his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.

(3) In all the cases where a person arrested by police, is produced before the Magistrate and remand - judicial or non-judicial - is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.

(4) When the police arrests a person in execution of a warrant of arrest obtained form a Magistrate, the person so arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.

(5) Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guide-lines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us.

The Court directed all ranks of police and the prison authorities to meticulously obey the above mentioned directions. Any violation of any of the directions issued by us by any rank of police in the country or member of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law. The writ petition was allowed in the above terms. No costs

5.  Sunil Batra v. Delhi Administration and others 1978 AIR 1675

Decided on 30 August 1978

The issue before the Court was whether Solitary confinement for prisoner under sentence of death under section 30 and Imposition of bar-fetters under section 56 of the Prison’s Act were violative of Articles 14, 19 and 21 of the Constitution of India 1950  

The Court (per Justice V.R. Krishnaiyer for himself and Chandrachud(CJ), Syed Murtaza Fazal Ali, P.N. Singhal JJs, Justice D.A. Desai separately) noted that the Law Commission in its 42nd Report has recommended the abolition of solitary confinement. Further solitary confinement is imposed as a punishment under section 73 and 74 IPC and under prison manual as a matter of prison discipline.    It held that Section 30 and section 56 both were intra vires. At the same time it gave narrow interpretation to the words Solitary Confinement and ‘Prisoner under sentence of death’. It also opined that Fetters under Section 56 of Prison Act cannot be put for indefinitely long periods and without any adequate reason.

The Court examined in great details the issue of fetters on prisoners inside the jail, its sanction, practice and desirability. It held,”Undoubtedly, the limited locomotion that a prisoner may enjoy while being incarcerated is seriously curtailed by being put in bar fetters. Article 21 forbids deprivation of personal liberty except in accordance with the procedure established by law and curtailment of personal; liberty to such an extent as to be a negation of it would constitute deprivation. Bar fetters make a serious in-road on the limited personal liberty which a prisoner is left with and, therefore, before such erosion can be justified it must have the authority of law. At one stage it was felt that the provision contained in para 399(3) would provide the sanction of law for the purpose of article 21. Section 56 confers power for issuing instructions by the Inspector General of Prison with the sanction of the State Government and section 59 confers power on the State Government to make rules which would include the rule regulating confinement in fetters. A deeper probe into the sanction behind enactment of para 399 ultimately led the learned Additional Solicitor General to make the statement on behalf of the respondents that para 399 of the Punjab Jail Manual is not a statutory rule referable either to s. 59 or 60 of the Prisons Act, 1894. Learned Counsel stated that despite all efforts respondents were unable to obtain the original or even a copy of sanction of the local Government referred to in s. 56. We must, therefore, conclude that the provision contained in para 399 is not statutory and has not the authority of law. “

The Court also examined if the power conferred on the Superintendent by s. 56 is unguided and uncanalised in the sense that the Superintendent can pick and choose a prisoner arbitrarily for being subjected to bar fetters for such length of time as he thinks fit, and for any purpose he considers desirable, punitive or otherwise. It said,” A bare perusal of s. 56 would show that the Superintendent may put a prisoner in bar fetters (i) when he considers it necessary; (i;) with reference either to the state of the prison or character of the prisoner; and (iii) for the safe custody of the prisoner. Now we would exclude from consideration the state of prison requirement because there is no material placed on record to show that the petitioner was put in bar fetters in view of the physical state of the Tihar Central Jail. But the Superintendent has first to be satisfied about the necessity of putting a prisoner in bar fetters and "necessity" is certainly opposed to mere expediency. The necessity for putting the prisoner in bar fetters would have to be examined in the context of the character of the prisoner and the safe custody of the prisoner. The safe custody of the prisoner may comprehend both the after custody of the prisoner who is being put in bar fetters and of his companions in the prison. We must here bear in mind that the Superintendent is required to fully record in his Journal and in the prisoner's history ticket the reasons for putting the prisoner in bar fetters. Thus the power conferred by section 56 is neither un-canalised nor unguided “.

The Ruling given in above case was reiterated in Kishor Singh  vs. State of Rajasthan ( AIR 1981 SC 625 ) in which there was inter-alia allegation that the prisoner was manhandled severely by the escort police while being brought to the Court. The Supreme Court ruled that the provision of Article 21 of the Constitution of India continue to apply to the prisoner. The respect for human person and sympathy for Humanist creed were underlined by the Court and asked for suitable changes in the Police and Prison Rules. In a subsequent case (Delhi Judicial Service Association vs. State of Gujarat, AIR 1991 Sc 2176) involving handcuffing of a Chief Judicial Magistrate, the Supreme Court has issued guidelines regarding arrest and detention of judicial officers. These guidelines inter-alia provided

“…(vii) There should be no handcuffing of a Judicial Officer. If however violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb ,the person resisting arrest may be overpowered and handcuffed. …But the burden would be on the to establish the necessity for effecting physical arrest and handcuffing the judicial officer and if it is established that the physical arrest and handcuffing the judicial officer as unjustified ,the police officers causing  or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and /or damages as may be summarily determined by the High Court”

After a series of Court decisions discussed above, most of the States have already made suitable amendments in their State Police Manuals on the subject of use of Handcuffs for securing the arrested person/prisoner.  National Human Rights Commission has also issued directives for strict compliance by the Sate Governments. Thus legal position regarding Handcuffing is that it is primarily not permitted in India. Any Police person handcuffing an individual has to be ready to explain his conduct both in a Departmental action as well as before the Court where he could be hauled up for Contempt of Court. On the other hand during crime investigation in the field, the investigating officer   faces the real challenge of arresting the suspect from midst of his people including supporters. This frequently occurring requirement is a delicate task in which the arresting team is under imminent danger of being attacked by the suspect or his supporters. Further in many cases before the suspect is overpowered, he tries to run away avoiding arrest. Antecedents or character of suspect or even the details of offence and accomplices present around may not be clear at the time of confronting the suspect. Therefore it stands to reason that once there is a prima-facie suspicion of involvement in a cognizable offence, the suspect must be arrested and his hands restrained by use of handcuffs. No doubt the use of handcuffs is a use of force and therefore it must stand the test of reasonableness. A balance of Human rights of the prisoner/arrested person and the society at large has to be reached.

The safety of arresting / escorting team personnel from violence by arrested person/prisoner or his friends/enemies is a real possibility and not a figment of imagination. The prestige and comfort of prisoner/arrested person has to be balanced by the harsh realities of day to day crime situation in that area. The much touted use of Video Conferencing to mark the Prisoner’s presence in Court is not a practical or feasible solution considering large number of prisoners required to be produced before different Courts everyday. A total of 60,41,559 cognizable crimes were registered in India in 2012. In the same period there were 1, 27,789 Convicts and 2,54,857 undertrials in the Indian Prisons . Besides the Undeertrials, few of these convicts were also facing trials requiring their regular production before the Court. In 2012, a total of 74,20,090 persons were arrested under different crime heads. Those not released on Bail /personal Bond by police or released after questioning were produced before the Court. Thus the problem of incident free arrest and safe carriage of prisoner is really gigantic for our country.  The spread of technology required for such Video coverage is also limited to big towns, whereas the Courts are also located in Moffusil areas. Its use is also dependent on stable power supply and noiseless communication channel both of which are not assured in rural areas.

Unfortunately there is no empirical data or credible research done in this area to suggest the efficacy or otherwise of handcuffing or the extra manpower load on the police which is required to implement the Supreme Court verdict of “No Handcuff is the rule.”The students and experts in the field of Criminology and Police Sciences should take up such fact finding research. They should also study the practices in other Democratic countries as well and go through the studies made there on the subject. This will help them to come out with useful data and suggestions which could be placed before the Supreme Court for fresh consideration of their Ruling.

Sharda Prasad,

Advocate, Practicing in Supreme Court