IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.03.2010 CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR W.P.NO.2302 of 2010 and M.P.NO.1 OF 2010 M.Elango ..Petitioner vs 1.The Superintendent, Central Prison,Coimbatore. 2. The Inspector of Police, Civil Supplies CID, Erode, Erode District. 3. The Inspector of Police, Civil Supplies, CID, Salem, Salem District. ..Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus forbearing the respondents, their men or whomsoever acting their on behalf from bringing petitioner's owner Ahamed Ali who detained under Black Market Act confined in Central Jail, Coimbatore with handcuffs and chain as and when he has to be produced before the Advisory Board, High Court, Madras. for Petitioner :Mr.C.Prakasam for Respondents : Mr.R.Neelakandan Government Advocate ORDER By consent, the writ petition itself is taken up for final disposal. 2. The prayer in the writ petition is to issue a writ of Mandamus forbearing the respondents, their men or whomsoever acting on their behalf from bringing petitioner's owner Ahamed Ali who is detained under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act (hereinafter referred to as 'the Act') and confined in Central Jail, Coimbatore with handcuffs and chain as and when he has to be produced before the Advisory Board, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner is working as Clerk under one Ahamed Ali, who is running Oil Store at Bhavani. Respondents 2 and 3 registered cases against the said Ahamed Ali under the provisions of the Essential Commodities Act and he was detained under custody on 02.02.2010 under the Act and now he is confined in Central Jail, Coimbatore. 4. It is alleged in the affidavit filed in support of the writ petition that whenever the respondents took his owner to produce before the Judicial Magistrate-III, Erode, Judicial Magistrate-II, Namakkal and Judicial Magistrate-II, Salem and also before the Advisory Board, High Court, Madras, they use handcuffs along with chain in the body of the said Ahamed Ali and other accused persons. The said action of the respondents in handcuffing and chaining the said persons is in violation of the decision of the Supreme Court in Citizen for Democracy through its President Vs. State of Assam and others reported in AIR 1996 SC 2193: (1995) 3 SCC 743. Hence, the petitioner has filed the present writ petition with the above said prayer. 5. The Superintendent of Central Prison, Coimbatore filed a counter affidavit on 12.2.2010. Paragraphs 3 and 4 of the counter affidavit are extracted hereunder: 3. " .....it is submitted that the person namely Bhavani Bai @ Ahamed Ali S/o Naina Mohamd mentioned in the affidavit by the petitioner was remanded in Civil Supplies Criminal Investigation Department, Erode Cr.No.61/10 under Section 6(4) of TNSC (RDCS) Order 1982 r/s 7(1)(a)(ii) of Essential Commodities Act 1955 and 307 IPC by the Judicial Magistrate No.III, Erode on 3.2.2010 and admitted in this prison as a remand Prisoner on the same day itself. Later he was detained under Section 3(2)(a) read with 3(1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (Act 7 of 1980) w.e.f. 8.2.2010 as per the detention order issued by the District Magistrate and District Collector, Erode in C.No.1/PBMMSEC ACT/2010 (M3) dated 7.2.2010 and now he is confined in this prison as a black marketing detenu. 4. Regarding the averments in paragraph Nos.3 to 8, it is submitted that the above said detenu has to be produced before the Judicial Magistrate No.III, Erode on 17.2.2010 through video conferencing system for hearing as per the remand warrant entries. He will be produced before the https://hcservices.ecourts.gov.in/hcservices/ Chairman, State Advisory Board, High Court, Madras for hearing in person on the date which will be intimated by the Government. Handcuffing of prisoners while sending to courts, out hospitals etc. under the police escort is decided by the police only. The Prison Department cannot interfere in that aspect. However, as per rule No.831(1) of Tamil Nadu Prison rules 1983 Under-trial prisoners shall not be normally handcuffed except:- (a) Prisoner involved in serious and heinous offences: (b) Prisoners having notorious or dangerous background: (c) Violent, aggressive and refractory prisoners; and (d) Prisoners who have previously escaped or are suspected of having escape risks. The rule No.831(2) of Tamil Nadu Prison Rules 1983 says that "Handcuffing of under-trial prisoners may be done at the discretion of the officer in charge of police escort" The rule No.832(4) says that "It is for the police to decide whether such prisoner shall be handcuffed or not" It is submitted that the 1st respondent never use handcuff inside the prison on the detenu. However, it is for the safety and security of the detenu, to use handcuff as and when he was produced to the forum. It is submitted that, since the character, antecedents of the detenu Bhavani Bai @ Ahamed Ali S/o Naina Mohamed are not known to this prison administration, it is not possible for this Administration to inform about the nature of behavior of the detenu to the police escort party while handing him over to police escort to court, Advisory Board etc.," From the above stand of the first respondent, it is evident that the first respondent is relying on Rule 831(2) of Tamil Nadu Prison Rules, 1983, which states that handcuffing of under-trial prisoners may be done at the discretion of the Officer-in-charge of police escort and as per Rule 832(4), it is for the police to decide whether such prisoner shall be handcuffed or not. According to the counter affidavit, the first respondent never use handcuffs inside the prison on the detenu. However, for safe and security of the detenu, they used handcuff whenever the https://hcservices.ecourts.gov.in/hcservices/ detenu was produced before the forum and since the character and antecedents of the detenu viz., Bhavani Bai @ Ahamed Ali are not known to the prison administration, such handcuffing was made while handing him over to Police escort to be produced before the Court or before the Forum. 6. Since the writ petition is filed by the Clerk of the detenu to ascertain the actual fact, the counsel for the petitioner was directed to file an affidavit from the detenu, namely Ahamed Ali. 7.Today, learned counsel for the petitioner produced an affidavit signed by the detenu dated 3.3.2010 before the Superintendent, Central Prison, Coimbatore. In paragraphs 1 to 3 of the said affidavit, it is stated as follows: "1. I submit that I was detained under Black Market Act and I am in Central Jail at Coimbatore. My Clerk Elango, as per my instructions, he filed the above writ petition praying for issue a writ of Mandamus, forbearing the respondents, their men, or whomsoever acting their on behalf from bringing petitioner's owner Ahamed Ali who detained under Black Market Act confined in Central Jail, Coimbatore with handcuffs and chain as and when he has to be produced before the Magistrate Courts or to be produced before the Advisory Board, High Court, Madras and the same is pending. 2. I submit that whenever I was produced before the Court for extension of remand in the ground case in the detention order, the police escort they put handcuff on me and I came to know that the detenu, who are detained in Central Prison, Coimbatore whenever they produced before the Advisory Board at Madras the police escort put the handcuff on them and traveled from Coimbatore to Madras and come back from Madras to Coimbatore by putting handcuff. 3. I submit that the Hon'ble Apex Court time and again held that the police should not put handcuff on the all prisoners hence, unless this Hon'ble Court grant interim injunction restraining the respondents, their men or whomsoever acting their on behalf from putting handcuff on me, whenever the police escort produced before the Magistrate Courts or to be produced before the Advisory Board, High Court, Madras https://hcservices.ecourts.gov.in/hcservices/ and this affidavit may treat the part and parcel of the affidavit filed by the writ petitioner and thus render justice." 8. Learned counsel for the petitioner, relying upon the Judgment of the Supreme Court reported in AIR 1996 SC 2193: (1995)3 SCC 743 (cited supra) submitted that a general direction is issued by the Hon'ble Supreme Court to all the police personnel and prison authorities of all the States not to handcuff prisoners and requested to pass similar orders. 9. Learned Government Advocate appearing for the respondents on the other hand submitted that the Tamil Nadu Prison Rules 1983 empowers the Police Personnel and Prison authorities to handcuff the detenue and the said prison rules are applied in the present case. 10. I have considered the rival submissions in the light of the Supreme Court Judgment above referred. The Supreme Court, after noticing the rights of the detenu, under-trial prisoners as well as the convicted prisoners held that the police authorities can resort to handcuffing or chaining only on certain circumstances, that too, after getting orders from the Judicial Magistrate concerned. The first respondent is therefore not justified in relying upon the Tamil Nadu Prison Rules, 1983 to sustain the action of handcuffing and chaining the detenue in this case. 11. In the above cited Judgment in Paragraphs 12 to 14 and 16 to 20 it is held as follows: "12. ..... the legal norm laid down by this Court in Shukla case, it was observed as under: (SCC pp.538-39, paras 26 and 27) “The conclusion flowing from these considerations is that there must first be well-grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick. The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the undertrial is a crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit — the onus of proof of which is on him who puts the person under irons — the police escort will be committing https://hcservices.ecourts.gov.in/hcservices/ personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policemen, cavalier fashion, handcuff prisoner in their charge, indifferently keeping them company assured by the thought that the detainee is under ‘iron’ restraint .... Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control.” 13. It is not necessary to burden this judgment by quoting further paragraphs from the judgment of this Court in Shukla case. Suffice it to say that this Court has, clearly and firmly, laid down that the police and the jail authorities are under a public duty to prevent the escape of prisoners and provide them with safe custody but at the same time the rights of the prisoners guaranteed to them under Articles 14, 19 and 21 of the Constitution of India cannot be infracted. The authorities are justified in taking suitable measures, legally permissible, to safeguard the custody of the prisoners, but the use of fetters purely at the whims or subjective discretion of the authorities is not permissible. 14. This Court in Batra case and Shukla case elaborately dealt with the extreme situation when the police and jail authorities can resort to handcuffing of the prisoners inside and outside the jail. It is a pity that the authorities have miserably failed to follow the law laid down by this Court in the matter of handcuffing of prisoners. The directions given by this Court are not being followed and are being treated as a pious declaration. We take judicial notice of the fact that the police and the jail authorities are even now using handcuffs and other fetters indiscriminately and without any justification. It has, therefore, become necessary to give binding directions https://hcservices.ecourts.gov.in/hcservices/ and enforce the same meticulously. 16. We declare, direct and lay down as a 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 or from jail to Court and back. The police and the jail authorities, on their own, shall have no authority 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. 17. 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. 18. 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." 19. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person 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. 20. 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 https://hcservices.ecourts.gov.in/hcservices/ 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." In Paragraph 21 of the said Judgment, the Hon'ble Supreme Court gave further direction which reads as follows: "21.We direct all ranks of police and the prison authorities to meticulously obey the above mentioned directions. Any violation of any of the direction 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 is allowed in the above terms." 12. In the light of the above decision of the Supreme Court and having regard to the affidavit filed by the detenu dated 3.3.2010 and the admission of handcuffing of the detenu by the first respondent/Superintendent of Central Prison, Coimbatore, this writ petition is disposed of with a direction to the respondents to scrupulously follow the directions issued by the Supreme Court in Citizen for Democracy through its President Vs. State of Assam and others reported in AIR 1996 SC 2193: (1995) 3 SCC 743 and violation of the directions of the Supreme Court, if any, will be treated as an act of contempt of Court. As observed by the Supreme Court in the above referred to decision, if the respondents are intending to handcuff or chain the detenu or any other under-trail prisoner or convicted prisoner, the concerned police officer or jail authority shall approach the local Magistrate and only after getting necessary orders, such handcuffing or chaining can be made. 13. It is unfortunate to note that even after 14 years of the Judgment of the Supreme Court, the first respondent is not appraised of the judgment either by the Department of Home or by the higher Police Officials, which is binding on all concerned under Article 142 of the Constitution of India. Hence, this Court is of the view that the judgment of the Hon'ble Supreme Court and of this Court shall be communicated to the concerned officials of the State Government, viz., (i)Secretary, Home Department, Government of Tamil Nadu, (ii) Director General of Police, Chennai-4, who in turn, shall communicate the same to the Superintendent of all Central Prisons and other prison authorities as well as to the Police Officials in the State of Tamil Nadu, for strict compliance and appropriate action. https://hcservices.ecourts.gov.in/hcservices/ 14. The Writ petition is allowed with above directions. No costs. Consequently, M.P.No.1 of 2010 is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar VJY To 1.The Superintendent, Central Prison,Coimbatore. 2. The Inspector of Police, Civil Supplies CID, Erode, Erode District. 3. The Inspector of Police, Civil Supplies, CID, Salem, Salem District. 4.The Secretary, Government of Tamil Nadu, Home Department, Fort St.George, Chennai 9. 5. The Director General of Police, Tamil Nadu, Chennai 4. 6. The Section Officer, 'F' Section, High Court, Madras. + 1 cc to Government Pleader,SR.15861 + 1 cc to Mr.C.Prakasam,Advocate,SR.15820 W.P.NO.2302 OF 2010 AND M.P.NO.1 OF 2010 PKB(CO) EM/11.3.10 https://hcservices.ecourts.gov.in/hcservices/