NARESH SONI Vs. STATE

JUDGEMENT

(1.) The petitioners Naresh Soni and Brij Mohan Gupta are lodged in District Jail Hamirpur. By means of this petition under Article 226 of the Constitution they challenged the legality of their confinement in solitary cells with iron-bar fetters. The case set up by the petitioners is that they are being prosecuted under Section 307 I. P. C. and Section 25 Arms Act in respect of an occurrence alleged to have taken place on 3. 1. 1982 in Gohara Chauki near village Aunta, police station Rath, District Hamirpur when they are said to have fired two shots on being challenged by the police party. They were arrested on 5. 1. 1982 and lodged in district Jail on 18-1-1962. It is alleged that there has never been any complaint against them for breach of prison discipline. The fetters of the petitioners are never removed and they are made to live in the solitary cells with iron-bar fetters on their body day and night ever since they were lodged inside the jail. It is further alleged that no reasons have been recorded in the history ticket or journal, being confined to solitary cells with iron-fetters. It is asserted that the inhuman torture inflicted on the petitioners are violative of Articles 14, 9, 21 and 22 of the Constitution. In the counter-affidavit filed by the Superintendent, District Jail Hamirpur, it is admitted that the petitioners are confined to solitary cells and kept in fetters. They are, however, allowed to come out every morning and evening for one hour and are also allowed to have their meals together along with another prisoner who is confined to solitary cell. In justification of the action taken against the petitioners it is stated that they belong to the proclaimed gang of Raju Bhatnagar which has created a havoc in the State of Delhi, Madhya Pradesh and Uttar Pradesh. The petitioners are involved in a number of criminal cases, with regard to Naresh Soni it has been alleged that on 9. 5. 1979 while he was being taken out from Jail to attend the Court he attacked the police guard between the inner and outer gates of the Jail in a bid to escape. Again, on 11. 5. 1979 while taken to the Court his brother Mahesh Soni fired on the police party outside the main gate with a view t o secure his release but the attempt was thwarted. Thereafter Naresh Soni managed to be released on bail, jumped the bail and remained untraceable for a long time. It is asserted that for security reasons the petitioners are confined in solitary cell with fetters which is permissible under paragraphs 829, 859 and 860 of the Jail Manual read with sections 28 and 56 of the Prisons Act, 1894. Further, it is mentioned on the wooden boards hanging outside the cells that the petitioners are being detained on security reasons. While admitting the petitioners in cells detailed reasons have been recorded for adopting these measures, but the reasons have not been communicated to the petitioners as there is no such requirement of law. In the rejoinder affidavit the allegations regarding bid to escape by Naresh Soni have been denied. With regard to the incident of 9. 5. 1979 it has been stated that Naresh Soni was mercilessly beaten by the police while he was being taken from Jail to the Court and the story of attempting to escape has been invented to cover up the beating. The injuries that Naresh Soni had received at that time had been noted in the register when he was brought back to the Jail. The alleged act of firing on the police party by Mahesh Soni on 11. 5. 1979 outside the main gate of the Jail has also been denied as incorrect. The petitioners are under-trial prisoners. They are confined to solitary cells with iron-bar fetters ever since they were lodged hi Jail on 18,1. 1982. It is more open to debate that the petitioners are not wholly denuded of their fundamental rights though their liberty is circumscribed by the very fact of their confinement in Jail. The legality of putting a prisoner in solitary confinement and in bar fetters came up for consideration before the Supreme Court in Sunil Batra v. Delhi Administration and others A. I. R. 1978 S. C. 1675 and again reiterated in the case of the same petitioner reported in A. I. R 1980 Supreme Court 1579 that whether inside prison or outside, a person is not deprived of his guaranteed freedom save by methods 'right, Just and fair' : (A. I. R. 1978 S. C 597 ). As observed by Iyer J. in the latter case of Sunil Batra "we have made it clear that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of Court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodo-my and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment. Dealing with solitary confinement the Court observed : Any harsh isolation from society by long, lonely, cellular detention is penal and so must be inflicted only consistently with fair procedure. Dealing with confinement in iron-fetters was observed:- To fetter prisoners in irons is an inhumanity unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice. " Again in Kishore Singh Ravinder Dev Etc. v. State of Rajasthan A. I. R. 1981 S. C. 625, it was observed that solitary confinement disguised as "keeping in separate cell" and imposition of fetters are not to be resorted to save in the rarest of rare cases and with strict adherence to the procedural 'safeguards. The use of hand-cuffs and iron fetters came up for consideration before the Supreme Court in Prem Shanker Shukla v. Delhi Administration, A I. R. 1980 S. C. 1535. The Court observed that insurance against escape does not compulsorily require handcuffing. There are other measures-whereby an escort can keep safe custody of detenu without the indignity and cruelty implicit in hand cuffs or other iron contraptions. It was observed: " We lay down as necessarily implicit in Articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Such arbitrary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 (See Sunil Batra (supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping. " It was further observed : " The only circumstance which validates incapacitation by irons -an extreme measure is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . if a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided then no iron bondage. This is the legal norm. Functional compulsions of security must reach that dismal degree that no alternative will work except manacles. " The Supreme Court went on to observe; " Some increase in the number of escorts, arming them if necessary, special training for escort police, transport of prisoners in protected vehicles, are easily available alternatives. . . . . . . . . . . . Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so, otherwise, under Article 21 the procedure will be unfair and bad in law. Nor will mere recording the reasons do, as that can be a mechanical process mindlessly made. The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval. Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The clear and present danger pf escape, breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and hearing and direction by the Court where the victim is produced. " In the present case we are not satisfied that the circumstances are that the petitioners must be condemned to live in solitary cells and that too in iron-bar fetters. The justification put forward by the State are not convincing. If Naresh Soni was being taken to the Court in iron-bar fetters he could hardly be in a position to attack the guards between the inner and the outer gates of the jail in a bid to escape. The alleged attempt made by his brother on a later occasion is also denied and remains unsubstantiated, the burden being on the State to establish it convincingly. We accordingly allow the petition and direct the respondents to remove the iron-bar fetters from the petitioners and not to keep the petitioners confined in solitary cells. If in future the situation so demands the respondents shall take necessary steps in accordance with law as declared by the Supreme Court. .