1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Aizaz Rijvi V/s. The State of Rajasthan (S.B. CRIMINAL MISC. PETITION No.799/2010) S.B. Criminal Misc. Petition under Section 482 of Criminal Procedure Code Date of Order :: July 08, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Niklesh Katara for Mrs. Kamla Jain for the Petitioner. Mrs. Alka Bhatnagar PP for the State. The petitioner is aggrieved by the order dated 05.04.2010 passed by the Chief Judicial Magistrate, Bundi, whereby the learned Magistrate has permitted the police to bring the accused to the Court under handcuffs and has also allowed the application moved by the police. The learned counsel for the petitioner contends that the petitioner happens to be a practicing advocate at Bundi. In case, the petitioner were brought in handcuffs, it would cause unnecessary embarrassment to the petitioner. Secondly, in the application filed by the police, the police merely states that six cases were registered against the petitioner. However, the fact remains that the petitioner has already been acquitted in three cases. Therefore, the police did not bring the correct facts to the notice of the Court. Thirdly, the police had also claimed that 2 there is a likelihood that the petitioner may run away while being escorted to the Court. However, there is no cogent evidence which proves that petitioner would run away from lawful authority. Thus, it had sought permission to bring the petitioner under handcuffs. Lastly, no notice was issued to the petitioner by the Magistrate although he should have been heard prior to passing of the impugned order. In order to buttress this contention, the learned counsel has relied upon Citizen for Democracy through its President V/s. State of Assam and others [AIR 1996 SC 2193]. On the other hand, the learned Public Prosecutor has contended that the petitioner is a practicing lawyer, who has repeatedly violated the law. Even if, he has been acquitted in three criminal cases, the fact remains that still three cases are pending against the petitioner. Secondly, certain “freedom at the joints” has to be given to the police. Therefore, in case the police were of the opinion that the petitioner is likely to run away from the police custody while he is being transported to the Court to stand trial, the police must be given a liberty to bring the accused under handcuffs to the Court. After all, it is the duty of the police to see that the accused is safely produced before the Court. Therefore, the security of the accused is its concern. Thirdly, neither the law, nor precedent requires that the accused be heard prior to the Court permitting the police to handcuff the accused person. The principles of natural justice 3 cannot be read in such a situation. It is, in fact, a matter strictly between the Court and the police and the accused does not have a locus standi. Heard the learned counsel for the parties and perused the impugned order. It is, indeed, shocking that a practicing advocate is involved in criminal cases. The profession of an advocate is said to be a noble profession; it is the foremost duty of an advocate to uphold the rule of law. An advocate who violates the rule of law brings a bad reputation to the noble profession. Such a person and has to be dealt with strictly. By his mis-conduct, he not only tarnishes his own self-image, but also ruins the image of the entire legal community. Although, it is true that the petitioner has been acquitted in three cases, yet the fact remains that three cases are still pending against him. Thus, it cannot be said that he has not brushed with the law. The learned counsel for the petitioner has claimed that the petitioner is repeatedly involved in criminal cases due to certain animosity with the police. The said claim cannot be believed in absence of cogent evidence. Moreover, there is a presumption in law that whatsoever is done by a police officer is done in accordance with law. Therefore, it seems to be more an excuse than a valid justification for having been involved in criminal cases. Repeatedly, the Hon'ble Supreme Court has 4 expressed its opinion that “certain play at the joints” has to be given to the executive while the executive is trying to implement the law. Thus, it is for the police in its discretion to decide whether the accused person is so dangerous as to probablise the possibility of his escaping from the police custody or not. Until and unless there are glaring facts which prove innocence of the person, that discretion of the police has to be taken at its face value. In the case of Citizen for Democracy (supra), the Hon'ble Supreme Court has observed as under :- “As a rule it shall be the rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under- trial – while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another from jail to Court and back. The police and the jail authorities, on their own, shall have no authority without obtaining order from Magistrate, to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to Court and back. The relevant considerations for putting a prisoner in fetters are the character, antecedents and propensities of the petitioner. The peculiar and special characteristics of each individual prisoner have to be taken into consideration. The nature or length of sentence or the number of convictions or the gruesome character of the crime the prisioner is alleged to have committed are not by themselves relevant consideration.” A bare perusal of the observation clearly reveals that the test laid down by the Hon'ble Supreme Court is character, the antecedents and the propensities of the prisoner. According to the Hon'ble Supreme Court, the peculiar and special characteristics of each individual prisoner have to be taken into 5 consideration. The nature or length of the sentence or the number of convictions or the gruesome character of the crime the prisoner is alleged to have committed are not by themselves by the relevant consideration. Considering the fact that the petitioner happens to be the practicing lawyer, considering the fact that repeatedly the petitioner has brushed with the law, obviously, the petitioner is not above the law. Considering the fact that the petitioner has been involved in six criminal cases and is presently involved in three criminal cases, obviously his antecedents are not pristine. Although it is true that there is no evidence that the petitioner has tried to escape from the police custody, but considering the fact that he would be coming to a familiar surrounding where he has practised, the likelihood of his running away from the police custody cannot be ruled out. Moreover, the possibility that other persons might help the petitioner to escape the police custody cannot be ruled out. Therefore, the application filed by the police is certainly not misplaced. Thus, this Court does not find any perversity or illegality in the impugned order. For the reasons stated above, this petition is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.ASopa/-