IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 WP(C).No. 31222 of 2006(P) -------------------------- AGAINST THE ORDER DATED / / IN CRMP.289/2006 IN SC.106/2004 of ADDL.SESSIONS COURT (ADHOC-III),N.PARAVUR .................... PETITIONER(S): --------------- BINEESH K.N., KALATHIL HOUSE, CHERAI P.O., ERNAKULAM, (PRESENTLY UNDERTRIAL PRISONER NO.1187, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM). BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON SRI.JINU JOSEPH SRI.M.MUHAMMED SHAFI SRI.C.K.AJAYAKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS), THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. G.P. SMT.SMITHA SUKUMARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF LIST OF COURTS. P2: TRUE COPY OF APPLICATION CRL. M.P. NO.289/06 IN SC 106/04 FILED BY PETITIONER BEFORE THE ADDL. SESSIONS COURT(ADHOC-III), NORTH PARAVUR DT.16.8.06. TRUE COPY PA TO JUDGE C.R. C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.31222 of 2006 .................................................................... Dated this the 19th day of December, 2008. JUDGMENT The petitioner, accused of various offences was in Police custody when this W.P. was filed. The grievance of the petitioner is that he is handcuffed all the time when is under transport or while he is presented before the court. The offences referred to in this W.P. are cases of cheating registered against the petitioner under Section 420 IPC. However, Government Pleader submitted that petitioner was involved in a murder case and he is as of now a convict serving the sentence in the Central Prison. However, petitioner's case has to be considered because petitioner being an accused in other cases has to be transported on and often to various courts and back to the prison. 2. Counsel for the petitioner has relied on various decisions of the Supreme Court, particularly one in PREM SHANKAR SHUKLA V. DELHI ADMINISTRATION (AIR 1980 SC 1535) wherein the Supreme Court has held that handcuffing is prima facie inhuman and brutal and therefore, it should be resorted to only in extreme cases of necessity. The Government Pleader has referred to the statement furnished by the Commissioner of 2 Police, Trivandrum stating that handcuffing is done only in cases where accused happens to be a desperate character who may use violence to escape from Police custody. She has referred to Rule 43(1) of the Kerala Police Manual Volume II which authorises handcuffing of persons in custody, if the same is required to prevent violence or attempt of the accused to escape from custody. The Government Pleader has also brought to the notice of this court that in most cases Police is not able to transport accused in their own vehicle and they depend on public transport system like buses and trains for transporting accused. It is a notorious fact that there is a shortage of Police personnel and accused are seldom accompanied by sufficient number of Police. Besides this, Police is also not armed properly so that escape for the accused is not a difficult job. Many cases of accused escaping from Police custody are reported on and often. Therefore, handcuffing to prevent accused from using force against the Police or attempting to escape from Police custody may be required atleast in some cases and situations. In the first place, it is permissible by the Police Rules and though there are several judgments adversely commenting against unnecessary handcuffing, Supreme Court has not issued any direction granting blanket prohibition of handcuffing. 3. Handcuffing is certainly a major restriction on the movement of the 3 accused. At times, it will turn out to be very dangerous because during transport if an accident happens, accused may not be able to save himself. However, at the same time, if an accused is physically free of movements while under transport, there is likelihood of accused overpowering accompanying Policemen or even making use of opportunity when the Police are not alert and try to escape from custody. In fact, instances are there where accused are physically much more dominant than the accompanying Police personnel and accused may be able to easily overpower the accompanying Police team. Accused may even be getting help from outside against the Police. Therefore, the Police is absolutely free to handcuff an accused if they apprehend his escape either on account of force used by him or with the assistance rendered by others from outside. However, I feel, if an accused is transported exclusively in the company of the Police in their own vehicle, handcuffing should not be done unnecessarily to harass him or illtreat him. Similarly when the accused is produced in the court, Police should go by the instruction of the court in regard to the freedom to be given to the accused while being produced in court. In fact, if mobility of the accused could be restricted other than through handcuffing, Police can adopt such a course instead of tying the hands together. In any case it would not be possible for the court to lay 4 down the circumstances under which a person in custody could be handcuffed. I feel it should be left to the Police accompanying the accused to decide whether handcuffing is required and it should be done if the Police have a reasonable apprehension that without the handcuffing the accused with or without the assistance from outside may escape from custody. The W.P. is closed with the above observation. C.N.RAMACHANDRAN NAIR Judge pms