M.Elango v. The Superintendent, Central Prison, Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:08.03.2010CORAM:THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMARW.P.NO.2302 of 2010andM.P.NO.1 OF 2010M.Elango ..Petitioner vs1.The Superintendent, Central Prison,Coimbatore.2. The Inspector of Police, Civil Supplies CID, Erode, Erode District.3. The Inspector of Police, Civil Supplies, CID, Salem, Salem District. ..Respondents Petition filed under Article 226 of the Constitution ofIndia praying to issue a writ of Mandamus forbearing therespondents, their men or whomsoever acting their on behalf frombringing petitioner's owner Ahamed Ali who detained under BlackMarket Act confined in Central Jail, Coimbatore with handcuffsand chain as and when he has to be produced before the AdvisoryBoard, High Court, Madras.for Petitioner :Mr.C.Prakasamfor Respondents : Mr.R.Neelakandan Government AdvocateORDER By consent, the writ petition itself is taken up forfinal disposal. 2. The prayer in the writ petition is to issue a writ ofMandamus forbearing the respondents, their men or whomsoeveracting on their behalf from bringing petitioner's owner AhamedAli who is detained under the Prevention of Black Marketing andMaintenance of Supplies of Essential Commodities Act (hereinafterreferred to as 'the Act') and confined in Central Jail,Coimbatore with handcuffs and chain as and when he has to beproduced before the Advisory Board, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

3. The petitioner is working as Clerk under one AhamedAli, who is running Oil Store at Bhavani. Respondents 2 and 3registered cases against the said Ahamed Ali under the provisionsof the Essential Commodities Act and he was detained undercustody on 02.02.2010 under the Act and now he is confined inCentral Jail, Coimbatore. 4. It is alleged in the affidavit filed in support ofthe writ petition that whenever the respondents took his owner toproduce before the Judicial Magistrate-III, Erode, JudicialMagistrate-II, Namakkal and Judicial Magistrate-II, Salem andalso before the Advisory Board, High Court, Madras, they usehandcuffs along with chain in the body of the said Ahamed Aliand other accused persons. The said action of the respondents inhandcuffing and chaining the said persons is in violation of thedecision of the Supreme Court in Citizen for Democracy throughits President Vs. State of Assam and others reported in AIR 1996SC 2193: (1995) 3 SCC 743. Hence, the petitioner has filed thepresent writ petition with the above said prayer.5. The Superintendent of Central Prison, Coimbatorefiled a counter affidavit on 12.2.2010. Paragraphs 3 and 4 of thecounter affidavit are extracted hereunder:3. " .....it is submitted that the personnamely Bhavani Bai @ Ahamed Ali S/o NainaMohamd mentioned in the affidavit by thepetitioner was remanded in Civil SuppliesCriminal Investigation Department, ErodeCr.No.61/10 under Section 6(4) of TNSC(RDCS) Order 1982 r/s 7(1)(a)(ii) ofEssential Commodities Act 1955 and 307 IPCby the Judicial Magistrate No.III, Erode on3.2.2010 and admitted in this prison as aremand Prisoner on the same day itself.Later he was detained under Section 3(2)(a)read with 3(1) of the Prevention of BlackMarketing and Maintenance of Supplies ofEssential Commodities Act 1980 (Act 7 of1980) w.e.f. 8.2.2010 as per the detentionorder issued by the District Magistrate andDistrict Collector, Erode in C.No.1/PBMMSECACT/2010 (M3) dated 7.2.2010 and now he isconfined in this prison as a black marketingdetenu.4. Regarding the averments in paragraphNos.3 to 8, it is submitted that the abovesaid detenu has to be produced before theJudicial Magistrate No.III, Erode on17.2.2010 through video conferencing systemfor hearing as per the remand warrantentries. He will be produced before the https://hcservices.ecourts.gov.in/hcservices/ Chairman, State Advisory Board, High Court,Madras for hearing in person on the datewhich will be intimated by the Government.Handcuffing of prisoners while sending tocourts, out hospitals etc. under the policeescort is decided by the police only. ThePrison Department cannot interfere in thataspect. However, as per rule No.831(1) ofTamil Nadu Prison rules 1983 Under-trialprisoners shall not be normally handcuffedexcept:-(a) Prisoner involved in serious and heinousoffences: (b) Prisoners having notorious or dangerousbackground:(c) Violent, aggressive and refractoryprisoners; and (d) Prisoners who have previously escapedor are suspected of having escape risks.The rule No.831(2) of Tamil Nadu Prison Rules1983 says that "Handcuffing of under-trialprisoners may be done at the discretion ofthe officer in charge of police escort"The rule No.832(4) says that "Itis for the police to decide whether suchprisoner shall be handcuffed or not" It is submitted that the 1strespondent never use handcuff inside theprison on the detenu. However, it is forthe safety and security of the detenu, touse handcuff as and when he was produced tothe forum.It is submitted that, since thecharacter, antecedents of the detenuBhavani Bai @ Ahamed Ali S/o Naina Mohamedare not known to this prisonadministration, it is not possible for thisAdministration to inform about the natureof behavior of the detenu to the policeescort party while handing him over topolice escort to court, Advisory Boardetc.,"From the above stand of the first respondent, it is evident thatthe first respondent is relying on Rule 831(2) of Tamil NaduPrison Rules, 1983, which states that handcuffing of under-trialprisoners may be done at the discretion of the Officer-in-chargeof police escort and as per Rule 832(4), it is for the police todecide whether such prisoner shall be handcuffed or not.According to the counter affidavit, the first respondent neveruse handcuffs inside the prison on the detenu. However, for safeand security of the detenu, they used handcuff whenever the https://hcservices.ecourts.gov.in/hcservices/ detenu was produced before the forum and since the character andantecedents of the detenu viz., Bhavani Bai @ Ahamed Ali are notknown to the prison administration, such handcuffing was madewhile handing him over to Police escort to be produced before theCourt or before the Forum. 6. Since the writ petition is filed by the Clerk of thedetenu to ascertain the actual fact, the counsel for thepetitioner was directed to file an affidavit from the detenu,namely Ahamed Ali.7.Today, learned counsel for the petitioner produced anaffidavit signed by the detenu dated 3.3.2010 before theSuperintendent, Central Prison, Coimbatore. In paragraphs 1 to 3of the said affidavit, it is stated as follows:"1. I submit that I was detained underBlack Market Act and I am in Central Jail atCoimbatore. My Clerk Elango, as per myinstructions, he filed the above writpetition praying for issue a writ ofMandamus, forbearing the respondents, theirmen, or whomsoever acting their on behalffrom bringing petitioner's owner Ahamed Aliwho detained under Black Market Act confinedin Central Jail, Coimbatore with handcuffsand chain as and when he has to be producedbefore the Magistrate Courts or to beproduced before the Advisory Board, HighCourt, Madras and the same is pending.2. I submit that whenever I was producedbefore the Court for extension of remand inthe ground case in the detention order, thepolice escort they put handcuff on me and Icame to know that the detenu, who aredetained in Central Prison, Coimbatorewhenever they produced before the AdvisoryBoard at Madras the police escort put thehandcuff on them and traveled from Coimbatoreto Madras and come back from Madras toCoimbatore by putting handcuff.3. I submit that the Hon'ble ApexCourt time and again held that the policeshould not put handcuff on the all prisonershence, unless this Hon'ble Court grantinterim injunction restraining therespondents, their men or whomsoever actingtheir on behalf from putting handcuff on me,whenever the police escort produced beforethe Magistrate Courts or to be producedbefore the Advisory Board, High Court, Madras https://hcservices.ecourts.gov.in/hcservices/ and this affidavit may treat the part andparcel of the affidavit filed by the writpetitioner and thus render justice."8. Learned counsel for the petitioner, relying upon theJudgment of the Supreme Court reported in AIR 1996 SC 2193:(1995)3 SCC 743 (cited supra) submitted that a general directionis issued by the Hon'ble Supreme Court to all the policepersonnel and prison authorities of all the States not tohandcuff prisoners and requested to pass similar orders. 9. Learned Government Advocate appearing for therespondents on the other hand submitted that the Tamil NaduPrison Rules 1983 empowers the Police Personnel and Prisonauthorities to handcuff the detenue and the said prison rules areapplied in the present case.10. I have considered the rival submissions in thelight of the Supreme Court Judgment above referred. The SupremeCourt, after noticing the rights of the detenu, under-trialprisoners as well as the convicted prisoners held that the policeauthorities can resort to handcuffing or chaining only on certaincircumstances, that too, after getting orders from the JudicialMagistrate concerned. The first respondent is therefore notjustified in relying upon the Tamil Nadu Prison Rules, 1983 tosustain the action of handcuffing and chaining the detenue inthis case. 11. In the above cited Judgment in Paragraphs 12 to14 and 16 to 20 it is held as follows:"12. ..... the legal norm laid down bythis Court in Shukla case, it was observed asunder: (SCC pp.538-39, paras 26 and 27)“The conclusion flowing from theseconsiderations is that there must firstbe well-grounded basis for drawing astrong inference that the prisoner islikely to jump jail or break out ofcustody or play the vanishing trick. Thebelief in this behalf must be based onantecedents which must be recorded andproneness to violence must be authentic.Vague surmises or general averments thatthe undertrial is a crook or desperado,rowdy or maniac, cannot suffice. Inshort, save in rare cases of concreteproof readily available of thedangerousness of the prisoner in transit— the onus of proof of which is on himwho puts the person under irons — thepolice escort will be committing https://hcservices.ecourts.gov.in/hcservices/ personal assault or mayhem if hehandcuffs or fetters his charge. It isdisgusting to see the mechanical way inwhich callous policemen, cavalierfashion, handcuff prisoner in theircharge, indifferently keeping themcompany assured by the thought that thedetainee is under ‘iron’ restraint ....Even orders of superiors are no validjustification as constitutional rightscannot be kept in suspense by superiororders, unless there is material,sufficiently stringent, to satisfy areasonable mind that dangerous anddesperate is the prisoner who is beingtransported and further that by addingto the escort party or other strategy hecannot be kept under control.” 13. It is not necessary to burden thisjudgment by quoting further paragraphs fromthe judgment of this Court in Shukla case.Suffice it to say that this Court has,clearly and firmly, laid down that the policeand the jail authorities are under a publicduty to prevent the escape of prisoners andprovide them with safe custody but at thesame time the rights of the prisonersguaranteed to them under Articles 14, 19 and21 of the Constitution of India cannot beinfracted. The authorities are justified intaking suitable measures, legallypermissible, to safeguard the custody of theprisoners, but the use of fetters purely atthe whims or subjective discretion of theauthorities is not permissible.14. This Court in Batra case and Shuklacase elaborately dealt with the extremesituation when the police and jailauthorities can resort to handcuffing of theprisoners inside and outside the jail. It isa pity that the authorities have miserablyfailed to follow the law laid down by thisCourt in the matter of handcuffing ofprisoners. The directions given by this Courtare not being followed and are being treatedas a pious declaration. We take judicialnotice of the fact that the police and thejail authorities are even now using handcuffsand other fetters indiscriminately andwithout any justification. It has, therefore,become necessary to give binding directions https://hcservices.ecourts.gov.in/hcservices/ and enforce the same meticulously.16. We declare, direct and lay down as arule that handcuffs or other fetters shall notbe forced on a prisoner-convicted or under-trial-while lodged in a jail anywhere in thecountry or while transporting or in transitfrom one jail to another or from jail to Courtand back. The police and the jail authorities,on their own, shall have no authority todirect the handcuffing of any inmate of a jailin the country or during transport from onejail to another or from jail to Court andback.17. Where the police or the jailauthorities have well grounded basis fordrawing a strong inference that a particularprisoner is likely to jump jail or break outof the custody then the said prisoner beproduced before the Magistrate concerned and aprayer for permission to handcuff the prisonerbe made before the said Magistrate. Save inrare cases of concrete proof regardingproneness of the prisoner to violence, histendency to escape, he being sodangerous/desperate and the finding that noother practical way of forbidding escape isavailable, the Magistrate may grant permissionto handcuff the prisoner.18. In all the cases where a personarrested by police, is produced before theMagistrate and remand-judicial or non-judicial-is given by the Magistrate the personconcerned shall not be handcuffed unlessspecial orders in that respect are obtainedfrom the Magistrate at the time of the grantof the remand."19. When the police arrests a person inexecution of a warrant of arrest obtained froma Magistrate, the person arrested shall not behandcuffed unless the police has also obtainedorders from the Magistrate for the handcuffingof the person to be so arrested.20. Where a person is arrested by thepolice without warrant the police officerconcerned may if he is satisfied, on the basisof the guide-lines given by us in para above,that it is necessary to handcuff such aperson, he may do so till the time he is taken https://hcservices.ecourts.gov.in/hcservices/ to the police station and thereafter hisproduction before the Magistrate, Further useof fetters thereafter can only be under theorders of the Magistrate as already indicatedby us."In Paragraph 21 of the said Judgment, the Hon'ble Supreme Courtgave further direction which reads as follows:"21.We direct all ranks of policeand the prison authorities to meticulouslyobey the above mentioned directions. Anyviolation of any of the direction issued byus by any rank of police in the country ormember of the jail establishment shall besummarily punishable under the Contempt ofCourts Act apart from other penalconsequences under law. The writ petition isallowed in the above terms." 12. In the light of the above decision of the SupremeCourt and having regard to the affidavit filed by the detenudated 3.3.2010 and the admission of handcuffing of the detenu bythe first respondent/Superintendent of Central Prison,Coimbatore, this writ petition is disposed of with a direction tothe respondents to scrupulously follow the directions issued bythe Supreme Court in Citizen for Democracy through its PresidentVs. State of Assam and others reported in AIR 1996 SC 2193:(1995) 3 SCC 743 and violation of the directions of the SupremeCourt, if any, will be treated as an act of contempt of Court. Asobserved by the Supreme Court in the above referred to decision,if the respondents are intending to handcuff or chain the detenuor any other under-trail prisoner or convicted prisoner, theconcerned police officer or jail authority shall approach thelocal Magistrate and only after getting necessary orders, suchhandcuffing or chaining can be made. 13. It is unfortunate to note that even after 14 yearsof the Judgment of the Supreme Court, the first respondent is notappraised of the judgment either by the Department of Home or bythe higher Police Officials, which is binding on all concernedunder Article 142 of the Constitution of India. Hence, this Courtis of the view that the judgment of the Hon'ble Supreme Court andof this Court shall be communicated to the concerned officials ofthe State Government, viz., (i)Secretary, Home Department,Government of Tamil Nadu, (ii) Director General of Police,Chennai-4, who in turn, shall communicate the same to theSuperintendent of all Central Prisons and other prisonauthorities as well as to the Police Officials in the State ofTamil Nadu, for strict compliance and appropriate action. https://hcservices.ecourts.gov.in/hcservices/

14. The Writ petition is allowed with above directions.No costs. Consequently, M.P.No.1 of 2010 is closed.Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarVJYTo1.The Superintendent, Central Prison,Coimbatore.2. The Inspector of Police, Civil Supplies CID, Erode, Erode District.3. The Inspector of Police, Civil Supplies, CID, Salem, Salem District.4.The Secretary, Government of Tamil Nadu, Home Department, Fort St.George, Chennai 9.5. The Director General of Police, Tamil Nadu, Chennai 4.6. The Section Officer, 'F' Section, High Court, Madras.+ 1 cc to Government Pleader,SR.15861+ 1 cc to Mr.C.Prakasam,Advocate,SR.15820W.P.NO.2302 OF 2010ANDM.P.NO.1 OF 2010PKB(CO)EM/11.3.10