BINEESH K N Vs. STATE OF KERALA

JUDGEMENT

(1.) 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, 1980 AIR(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 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 at least 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 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 o 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 ill-treat 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 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.