The Supreme Court on handcuffing of prisoners issued the following
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 any where 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 jail to Court and back.
Where the police or the jail authorities have well – grounded basis of 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 rate 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.
In all the cases where a person arrested by police is produced before the Magistrate and remanded to judicial or non –judicial custody – 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.
When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person so 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.
Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines 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 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 of the as already indicated by us.
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 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 (emphasis supplied)
We are also constrained to say that though nearly 15 years have elapsed since this Court gave its decision in Preme Shankar Shukla (AIR 1980 SC 1535) (supra) no steps have been taken by the concerned authorities in the State of Madhya Pradesh to amend the M.P. Police Regulations so as to bring them in accord with the law laid down by this court in that case. Nor has any circular been issued laying down the guidelines in the matter of handcuffing of prisoners in the light of the decision of this Court in Preme Shankar Shukla (supra). The Chief Secretary to the Government of Madhya Pradesh is therefore, directed to ensure that suitable steps are taken to amend the M.P. Police Regulations is the light of the law laid down by this Court in Preme Shankar Shukla (AIR 1980 SC1535) (supra) and proper guidelines are issued for the guidance of the of the police personnel in this regard. The Law Department and the Police Department of the Government of Madhya Pradesh shall take steps to ensure that the Law laid down by this court in the matter of protection of human rights of citizens as against actions by the police is brought to the notice of all Superintendents of Police in the Districts soon after the decision is given by issuing necessary circulars in that regard and the responsibility is placed on the Superintendent of Police to ensure compliance with the said circulars by the subordinate police personnel under his charge.
D.K. Basu Vs State of W.B.
The Supreme Court on hand cuffing issued directions for all state agencies in these words:
It is, therefore 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:
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.
That the police officer carrying out the arrest of the arrestee shall prepare a memo 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.
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.
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. The person arrested must be made aware as soon as he is out under arrest or is detained.
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.
(6) The arrestee should, where he so requests, to 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.
(7) 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.
(8) Copies of all the documents including the memo of arrest, referred to above should be sent to the Illaqa Magistrate for his record.
The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(10) A police control room should be provided at all district and State head quarters, 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 conspicuous notice board.
Failure to comply with the requirements herein above mentioned shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
The requirements, referred to above follow from Articles 21 and 22(1) of the Constitution and need to be strictly allowed. These would apply with equal force to the other Governmental agencies also like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force(CRPF), Border Security Force (BSF), the Central Industrial Security Force(CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau of, RAW, Central Bureau of Investigation (CBI), CIB, Traffic Police, Mounted police and ITBP.
These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.
The requirements mentioned above shall be forwarded to the Director General of Police and Home Secretary of every State/Union Territory and it shall be their obligation to circulated the same to every police station under their charge and get the same notified at every police station at a conspicuous place it would be a step in the right direction to combat the evil of custodial crime and bring in transparency and accountability.