Civil Writ Petition No.9650 of 2007. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 9650 of 2007. Date of Decision: 24th September, 2008. World Human Rights Protection Council ....Petitioner through Mr. Ranjan Lakhanpal, Advocate Versus State of Punjab & Ors. ...Respondents through Mr. H.S.Sidhu, Addl.AG, Punjab. Mr. Rameshwar Malik, Addl.AG, Haryana. Mr. Anupam Gupta, Advocate with Mr. Karan Bhardwaj, Advocate, for U.T., Chandigarh. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? T.S.THAKUR, CJ [ORAL) This petition has been filed in Public Interest. It seeks a Mandamus directing the police authorities not to handcuff or put fetters on the under-trials when they are brought to the Courts or are taken out of jail for any other purpose, except with the permission of the concerned Court/Magistrate. It also prays for a direction to the Courts/Magistrates to verify from the under-trials produced before them whether they have been subjected to handcuffs or the like and if so to command the concerned officers to initiate action against those responsible for doing so. We have heard learned counsel for the parties at some length. The legal position regarding use of handcuffs on under-trial Civil Writ Petition No.9650 of 2007. ::-2-:: prisoners stands authoritatively settled by a long-line of decisions rendered by the Hon'ble Supreme Court and different High Courts in the country. The decisions of the Supreme Court in Sunil Batra v Delhi Administration, [1978] 4 SCC, 494 and Prem Shankar Shukla v Delhi Administration, [1980] 3 SCC, 526 have examined at length the question relating to the legality of handcuffing and found that the same in inhumane, unreasonable and harsh. The Apex Court has, in the said decisions, issued several directions to the police authorities as also to the Courts dealing with under-trial prisoners with a view to prevent handcuffing and declared that freedom from handcuff is the rule and handcuffing an exception. In Prem Shankar Shukla's case [supra], the Hon'ble Supreme Court observed:- “We clearly declare – and it shall be obeyed from the Inspector General of Police and Inspector General of Prisons to the escort constable and the jail warder – that the rule regarding a prisoner to transit between prison house and course house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subjected to handcuffs or other “irons” treatment, and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment”. The above decision was reiterated by the Hon'ble Supreme Court in D.K.Basu v State of West Bengal [1997] 1 SCC, 416 wherein their Lordships of the Hon'ble Supreme Court have summed up the legal position as under:- Civil Writ Petition No.9650 of 2007. ::-3-:: “We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:- [1] The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. [2] That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. [3] A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. [4] The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. Civil Writ Petition No.9650 of 2007. ::-4-:: [5] The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. [6]. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. [7] The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. [8] The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State or Union Territory concerned. Director, Health Services should prepare such a panel for all tehsils and districts as well. [9] Copies of all the documents including the memo of arrest referred to above, should be sent to the Ilaqa Magistrate for his record. [10]. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. [11]. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a Civil Writ Petition No.9650 of 2007. ::-5-:: conspicuous notice board”. The directions issued by the Hon'ble Supreme Court in Citizen for Democracy through its President v The State of Assam & Ors. Writ Petition [Civil] No. 22 of 1995 are also apposite and relevant portion thereof may be extracted for ready reference:- “We direct, 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 the 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. No costs”. Notwithstanding the above directions, the police authorities appear to have continued the inhumane and improper practice of handcuffing the prisoners when they are taken out of the jail either for production before the Courts or for medical treatment in the Hospital. This is evident from a Press report appearing in the “Hindustan Times” Chandigarh Edition dated 8th June, 2007 captioned “Cops Chain Juvenile at PGI”. The news report, apart from commenting upon legality of the practice followed by the police authorities, shows an under-trial prisoner chained to the bed in the Post Graduate Institute of Medical Education and Research, Chandigarh. This writ petition brings into sharp focus the continuous and blatant disobedience of the directions issued by the Hon'ble Civil Writ Petition No.9650 of 2007. ::-6-:: Supreme Court by the police authorities in Punjab, sparing not even the juveniles when they are taken to the hospitals for treatment of any ailment. In response to the notice issued by this Court in the present proceedings, the respondents – States of Punjab and Haryana both have filed their counter-affidavits. In the affidavit filed by Dr. John V. George, IPS, Additional Director General of Police, Crime, Haryana, it is, inter-alia, stated that in the State of Haryana permission for handcuffs is sought from the Court as and when the same is necessary. The affidavit further states that fetters are not used by the Haryana Police and that handcuffs have been used only in heinous crimes with the permission of the Court concerned. Insofar as State of Punjab is concerned, an affidavit has been filed by Shri Jarnail Singh Dhaliwal, PPS, Superintendent of Police [Headquarters], Faridkot, inter-alia, stating that the juvenile – Manpreet Singh, referred to in the News Item, was lodged in the Juvenile Jail at Faridkot for an offence punishable under Section 302 IPC. He was suffering from a heart problem and had to be shifted to PGI, Chandigarh. Constables Angrez Singh and Jagdeep Singh were detailed as Escort Guards to take him to PGI, Chandigarh on 5th June, 2007 along with Watch and Ward duty-man Nand Singh from Juvenile Jail, Faridkot. The affidavit goes on to state that after reaching PGI, the Watch and Ward duty-man went to his head office while Constables Angrez Singh and Jagdeep Singh carried on with the guard duty during which period they decided to handcuff Manpreet Singh. A preliminary inquiry was conducted in that regard, Civil Writ Petition No.9650 of 2007. ::-7-:: followed by a regular departmental inquiry in which both the officials, mentioned above, were found guilty and were punished with forfeiture of two years service for violating the instructions regarding handcuffing issued by the higher police authorities. The affidavit also states that Line Officer, Police Lines, Faridkot was also warned for not briefing his subordinates properly while being sent on duty. Besides, detailed instructions have also been issued to all the Gazetted Officers and SHOs to brief their subordinates before sending them on guard duty with under-trials/ accused and they have also been directed to obtain prior permission of the Magistrates to handcuff any under-trial/accused, if the need so arises. Appearing for the petitioner, Mr. Lakhanpal argued that the law declared by the Hon'ble Supreme Court in the cases, referred to earlier, and the directions issued by the police authorities in the States of Punjab and Haryana notwithstanding, handcuffing continues with impunity. He submitted that the police authorities got encouraged in their inhuman treatment towards the under-trials on account of a failure on the part of the Judicial Officers to verify from the under-trials whether they have been handcuffed before they were brought to the Court. He argued that while an under-trial is produced in the Court, handcuffs may be removed but outside the Court, the prisoners are invariably handcuffed which, according to the learned counsel, is contrary to the pronouncements of the Hon'ble Supreme Court in the cases, referred to above. He urged that the matter could be remedied by an appropriate direction from this Court to the Courts/Magistrates to take appropriate steps and to verify from the Civil Writ Petition No.9650 of 2007. ::-8-:: under-trials whether they have been subjected to handcuffs before being brought to the Court and take appropriate action in case the malpractice is found to be continuing. On behalf of the States of Punjab and Haryana, it was argued by Mr. Sidhu and Mr. Malik that instructions have been issued on the administrative side by the Authorities in both the States in tune with the decisions of the Hon'ble Supreme Court that the under-trials shall not be handcuffed except with the permission of the Magistrates concerned and that while there may be occasional aberrations in that regard, the general rule in both the States is that under-trials are not subjected to any inhuman treatment on account of use of handcuffs. Mr. Anupam Gupta, learned counsel appearing on behalf of U.T.Administration argued that even in U.T., Chandigarh handcuffs were not used by the police authorities for taking the under-trial prisoners to the Court and back to the jail. He submitted that the writ petition does not accuse the U.T. Administration of having violated the directions contained in the judgments delivered by the Hon'ble Supreme Court. We have given our careful consideration to the submissions made by learned counsel for the parties and perused the record. As noticed earlier, the legal position regarding the use of handcuffs on under-trial prisoners is fairly well settled. The Hon'ble Supreme Court has, in the decisions, referred to earlier, clearly ruled that handcuffs can not be used except in cases where the Magistrate is approached and permission granted to the police authorities to do so. The law, therefore, stands fairly well settled. The problem, Civil Writ Petition No.9650 of 2007. ::-9-:: however, arises when the legal pronouncements are ignored and handcuffs used by the police authorities on account of their insensitivity to the human rights of those facing trials. The case at hand in which a juvenile was chained to the bed in a hospital clearly shows that even when the directions of the the Hon'ble Supreme Court forbid use of the handcuffs or fetters, the police authorities at times ignore the said directions and indulge in abuse of their authority. It is true that the authorities have initiated an inquiry against those responsible for the said abuse but we are surprised that the authorities have remained content with only punishing the Constables, who were responsible for handcuffing the under-trial. There is no explanation, much less a reasonable one, forthcoming from the State of Punjab as to why no action was taken against the higher officers in the police department. If chaining of the juvenile prisoner to the hospital bed was in violation of his human rights, the Constables alone were not responsible for the same. Even those supposed to supervise the discharge of functions by the Constables concerned, were responsible who could not claim any immunity from action in case their subordinates remain ignorant or insensitive to the legal requirements. There is no gain said that the Courts in the District Judiciary will do well to remain sensitive to the directions of the Hon'ble Supreme Court and to strictly obey the same by verifying from the under-trials, as and when they are produced before them, whether they have been subjected to handcuffs. The directions issued by the Hon'ble Supreme Court in that regard are not meant to remain confined to pages of the law reports. The Courts below ought Civil Writ Petition No.9650 of 2007. ::-10-:: to take steps to ensure that the misuse of handcuffs is reduced to the bare minimum, if not totally eliminated. In the totality of the above circumstances, therefore, we dispose of the present writ petition, with a direction to the Director Generals of Police, States of Punjab and Haryana and Inspector General of Police, U.T., Chandigarh, to issue appropriate directions to all those concerned with the production of the under-trials in the Courts, to strictly abide by the directions issued by the Hon'ble Supreme Court and to forbid them from handcuffing the prisoners, except in accordance with the permission of the Magistrate concerned. We further direct that the Registry shall circulate a copy of this order to all the Judicial Officers in the States of Punjab, Haryana and U.T., Chandigarh and would impress upon them the need for strict compliance of the directions issued by their Lordships of the Hon'ble Supreme Court. No costs. ( T.S.THAKUR ) CHIEF JUSTICE September 24, 2008. ( SURYA KANT ) dinesh JUDGE