Khedat Mazdoor Chetna Sangath Vs. State of M.P.& Ors.
EmailAppeal: Writ Petition No.239 of 1993
Petitioner: Khedat Mazdoor Chetna Sangath
Respondent: State of M.P.& Ors.
Apeal: Writ Petition No.239 of 1993
Judges: M.N. VENKATACHALIAH CJI., & S. MOHAN, J.
Date of Judgment: Sep 09, 1994
Head Note:
CRIMINAL LAW
Code of Criminal Procedure, 1973:
Section 406 – Allegations about harassment by Police Officers in registering of FIRs – handcuffing of tribals and locking up of the tribals in various police stations ‘ who are members of the Sangath with objects to prevent exploitation of the tribals- Facts and inquiry disclosed animosity of officials against petitioners – C.B.I directed to investigate, register cases and prosecute the officers, however high or low in the hierarchy of administration for serious lapses and to move the High Court under Section 406 Cr. Pr. Code for trials to take place outside the District.
Judiciary
The Court held that magistracy requires to be sensitised to the values of human dignity and to the restraint on power – There could be no worse lapse on the part of judiciary which is the sentinel of these great liberties.
Held:
After going through the reports of CBI, Judicial Magistrates etc the court observed that the above detained narration shows the present sordid picture and the sorrowful plight of public spirited men who desire to prevent exploitation of poor Adivasis. It cannot be denied that there have been acts by the police which should concern everyone who values human rights. It cannot be said that the day of the silent poor is over. There is anger and bitterness among those who are poverty stricken. One should have regard to these aspects in enforcing law. We are of the confirmed view that the law enforcement problem has always been and will remain a human problem. Unfortunately, in this case we find that the respondents have not acted with the responsibility that is expected from them. The report of the C.B.I. which we have extracted above shows how the police tried to be clever. The report states that the police has not recorded the happenings faithfully but misrepresented the locking up of a arrested persons on 30th October, 1992 in the police station, Sandwa. On the contrary, the facts disclosed that they were locked up at Police Station Alirajpur. (Paras 37 & 38)
The facts also disclosed the animosity the officials have against the Petitioner organisation. Yet there is another important matter namely the hand-cuffing which is to be taken serious note of . This Court has come down upon hand-cuffing in Prem Shankar Shukla v. Delhi Administration 1980 3 SCR 855. (Paras 40 & 41)
These two pronouncements constitute the law of the land, The plea of ignorance of the law only is stated to be rejected. What is worse in this case is the Magistrate behaving in this way. We are of the view that Magistracy requires to be sensitised to the values of human dignity and to the restraint on power. When it allows in inhuman conduct on the part of the police, it exhibits both the indifference and insensitiveness to human dignity and constitutional rights of the citizens. There could be no worse lapse on the part of the judiciary which is the sentinel of these great liberties. If dignity or honor vanishes what remains of life. In these circumstances to uphold human values and to protect the rights guaranteed under the Constitution, we hereby direct:-
1) the C.R.I. to investigate and register cases and prosecute of the officers however, high or low in the hierarchy of administration for these serious lapses;
2) the trials of such cases shall take place outside the District of Jhabua. At Indore District & Sessions Court. (Paras 44 & 45)
Khedat Mazdoor Chetna Sangath v. State of M.P.& Ors. (09-09-1994) JT 1994 (6) SC 60 (M.N. Venkatachaliah, CJI. & S. Mohan, JJ.)
Cases Reffered:
1. Sunil Gupta v. State of M.P., JT 1990 (2) SC 372 = 1990 (3) SCC 119. (Para 43)
2. Prem Shankar Shukla v. Delhi Administration, 1980 (3) SCR 855. (Para 41)
2. Prem Shankar Shukla v. Delhi Administration, 1980 (3) SCR 855. (Para 41)
JUDGEMENT:
MOHAN, J.:
1 The petitioner Khedat Mazdoor chetna Sangath is a registered Trade Union of Bhil, Bhilala, Mankar and Naik tribals of Alirajpur Tehsir in Jhabua District of Madhya Pradesh. It was started in October 1982. The object was to protest against and prevent the exploitation of the tribals. The constructions of Sardar Sarover Dam on the river Narmada is again another issue for which the petitioner’s association has been fighting for.
2. In the high hills of the Vindhya range, south of Jhabua District, massive deforestation has taken place. That has resulted in degradation and the productivity has reduced so much so, Jhabua has become chronically drought prone area. This has led to large scale crime, the people being poor wanted to make both ends meet.
3. The petitioner’s association has fought for access to forest resources which has been denied to them. Today, equally it has been a crusade against corruption. The Sangath has strengthened the traditional tribals custom of community resolution of disputes through, Panchayatas corrupt police officials have been publicly arraigned, departmental enquiries have been instituted on complaints lodged: cases have also been lodged; payment of minimum wages and eight hours working for a day have been secured. Further, the petitioner’s association demands environmental regeneration; social ameliorative measures like educating them and promoting their culture. Encouragement of knowledge regarding herbal medicines sponsoring Grain Banks and Co-operative Marketing have been undertaken in a large scale . Such measures have yielded good results.
4. The Sangath is wedded to the adoption of peaceful and constitutional means of mobilisation and protest and constructive developmental work with the aim of building up a strong tribal identity control both the economy and politics at the local level and capable of contributing creatively to the worldwide struggle for a more sustainable and equal developmental regime. Recently, there have been acts of repressions and police violence and atrocities perpetrated on the members of the petitioner’s association and local adivasis on 30.10.1992. The Jhabua Collector R.S.Julania, respondent No.2 held a meeting in Kakrana concerning submergence of zone villages. The Collector warned the people that if they persisted in their resistance, the combined might of the State-lathi, gun and pen would be used against them. When the meeting ended, seven activists of sangath were arrested. Of these, six were brutally beaten in the Alirajpur police station by the S.D.M. Vinod Kumar. On being presented before the Magistrate, when a demand was made for medical examination and the injuries being noted, that was denied under police pressure.
5. After meeting the police started arresting them one by one. This was on the basis of a false FIR registered at police station Sondva. On 12.12.1992 the police officials brutally beat up the members of the Petitioner Organisation in police custody.
6. On 17th November 1992 the Petitioner Khemla Aujanharia was arrested by the Alirajpur police who was handcuffed and paraded throughout the town by the police. Thereafter the police registered another FIR for effecting the arrest with regard to rally on 10th November 1992 in which it was alleged that Khemla was involved. This is false since he was in Kerala on 15th October, 1992 when they alleged incidents are stated to have taken place. In evidence of this the petitioner has annexed a letter of the Executive Director of GHRUTI evidencing Khemla’s participation in Kerala between 12th and 17th October 1992. Similar arrests of innocent people have been taking place. For trivial incidents they have been registering FIRs. Most of these are false FIRs. Falsity of these FIRs 11 of 1993 regarding the incidents of 22nd January had been registered at the instance of Pram Lal Nigam, an official of Narmada Development Authority.
7. On 2nd February, 9 activists who had gone to Indore to hold the Press Conference for countering the false charge made by the Collector were arrested. They were brought to Alirajpur where they were beaten in police custody. They were then handcuffed and paraded in the streets of Alirajpur. Concerning this Rahul N Ram and Ravi made a written complaint on 8.2.1993 to the Magistrate about the harassment and torture in police custody. In all, 28 people have been arrested between 31st January and 23rd February. They were charged for attempted murder. On 29th January 1993 Rahul N Ram was supposed to have attacked the police when he was in Baroda. The acts of violence, looting and destruction committed by the police on the villagers of Anjanwadan between 29th January to 2nd February 1993 were reported extensively by the local as well as notional press. A team of 3 highly respected persons investigated into it and submitted a report on 12th February 1993 that there was large scale brutal violence and terror perpetrated by the police on the Adivasis and activists of the petitioner organisation.
8. Besides the police terrorising the Adivasis and members of the Petitioner Organisation, the systematic campaign to malign the petitioner organisation by issuing false press releases.
9. All the above facts and circumstances leave no manner of doubt that the local administration including the Collector of Jhabua and S.P. of police are determined to crush the petitioner organisation by resorting to all kinds of illegal arrests, intimidation, violence, torture in police custody and even gone to the extent of looting and wantonly destroying the property of the local Adivasi villagers.
10 The petitioner organisation states that all these have been done under instructions of the Collector of Jhabua who had developed on inexplicable hostility and animosity against the members of the Petitioner Organisation. In fact the personally participated in belabouring of Shri Khemla. These acts are not only violative of the fundamental rights of the members of the Petitioner Organisation but also of the local Adivasis. If such acts are allowed unchecked and undeterred, it will lead to a complete repression of all voluntary and social organisation which are considered to be a hindrance to a corrupt, brutal and exploitative administration. This will reduce the country to a police state. It is therefore, absolutely essential in the interest of justice, human dignity and democracy that this Court must intervene: order an investigation determine the correct facts and take strongest possible action against the respondents who are responsible for these atrocities.
11. Under these circumstances , the following prayers are made:-
a) restrain the Respondents from harassing and arresting the members of the Petitioner organisation;
b) order an enquiry by an appropriate Commissioner into the atrocities committed by the Respondents on the members of the Petitioner organisation and other local tribals narrated in the incidents above;
c) punish the Respondents especially Respondent No.2 and any other officials who are found guilty of violating the rights of members of the Petitioner Organisation or local adivasis;
d) order the Respondents to pay compensation to the Petitioner organisation, its members and the local adivasis who have been tortured and whose rights have been violated and whose properties have been destroyed; and
e) quash the false FIRs registered against the members of the Petitioner Organisation i.e.FIR Nos.111 of 1992, 11,12,17 and 19 of 1993 at Police Station Sondus: and
f) pass any other or further order/s as this Hon’ble Court may deem fit and proper.
12. The 5th respondent, S.D.M., Alirajpur, Jhabua has filed a counter affidavit in which he explained the background of the case. It read:
“Alirajpur is a remote sub-division of Jhabua district having more than 85% of population coming under Schedule Tribes. People of this area usually carry bows and arrows and falies (Sickles) with them and they are always under the influence of country liquor or toddy. On very petty issues they quarrel among themselves and attack each other with sickles, arrows and stones fired from Gofun. These stone projectiles are very deadly and a person may even die if hit by them. Most of the deaths are cause by arrow, Gofun and suckles in the area.”
13. There was cordial relationship between the Collector and the Petitioner organisation to start with. He felt that they had a common goal of helping the tribals and fighting against corruption but in due course of time instead of doing service to the tribal the area of working of the Petitioner shifted towards Anti Dam Movement. 193 village of Madhya Pradesh State are coming under submergence, either fully or partially. Jhabua is one of the three districts of Madhya Pradesh affected by Sardar Sarover project. In this district out of 26 villages, 12 villages fully and 14 partially are coming under submergence. Consequently, the affected persons will have to be rehabilitated. The agitationists often criticise that the Government is not serious about rehabilitation.
14. On 15th October, 1992 when Narmada valley Development Authority rehabilitation party returned to Kakarapa from interior and unapproachable villages after accomplishing their work they were gheraoed and confined by the activists of the Petitioner organisation particularly Ms.Silvy alias Smt. Chittartupa Palit and about 150 tribals armed with bows-arrows, falivas and other lethal weapons forced the officials to raise antigovernment slogans under the threat of dire consequences including death. The officials were forced to remove the shoes and sleepers and hold the same in their hands. They were chased upto a distance of 2Kms. till Head Constable and the Block Development Officer came to their rescue. The Petitioner organisation also forced the drivers to flee away alongwith their jeeps from the village of Kakrana. This barbaric and uncivilised action speaks about the means of the Sangathan through which they wish to achieve their goal in Anti-Dam Agitation. The tribals have been indulging in violent activities. Therefore , necessary action has to be taken.
14A. As regards handcuffing it is stated as follows:-
“The petitioner have alleged that the members of the Organisation had been hand-cuffed by the local Administration. It is so because the handcuffing could not be avoided in view of the previous history of their indulging in crime. They not only tried to abscond but also absconded successfully and it took almost 15 days time to arrest all of them. To avoid the process of law to take its natural course the accused persons had escaped to Indore through tedious route requiring 15 to 20 K.M. Walk. At indore they held Press Conference and throughout Press Conference they Police kept patience and allowed them to complete, After the Press Conference was over Police tried to arrest the culprits but all of them attempted to run away. Mr.Rahul and Mrs.Anita succeeded in running away and therefore there was ample evidence that they are not law abiding citizens and they would have run away to avoid arrest at any cost. While under Police custody at Alirajpur they raised highly inflamatory and inciting slogans. Ms, Megha Patekar in public speech at Alirajpur threatened the Administration that local tribals will take up arms and the naxalism will come in the area. Further the distance of police station and court is about 1-1/2 K.M. and there two routes to the police Police Station both going through the town. None of Police Station in the Madhya Pradesh is provided with any vehicle even half of the Gazetted officers are not having vehicles. Therefore, in this background the Escort Commandor apprehended serious danger and therefore keeping in mind the security, the accused persons were hand-cuffed. Even the accused persons were produced before the learned judicial Magistrate in hand-cuffed and by granting police remand the learned Magistrate keeping in view the nature of offence committed by them impliedly approved of the action of hand-cuff.”
15. Incitement to violence and open encroachment of tribals to encroach upon the forest lands and to indulge in deforestation are activities which cannot be permitted. Those indulging in criminal activities could be arrested only after great difficulty. Handcuffing has been done only after the Escort Commander was satisfied as per the rules under Madhya Pradesh Police Manual.
16. It is incorrect to state that the local police has been indulging in looting, violence and destruction of properties of the members of the Petitioner organisation. In relation to the alleged corruption number of cases have been registered. The Government is very strongly fighting against it. Even after the incident of 22nd January,1993 the administration moved to settle the issues in a cordial atmosphere but nothing could be achieved in view of the hostile attitude of the Petitioner organisation. The members of the Petitioner organisation are in the habit of making false and frivolous allegations against the local administration and police personnel. The Judicial Magistrate examined the complaints of police torture and beating. He found on a perusal of a medical report the allegations were baseless.
17. The detailed Counter Affidavit further proceeds to state as to the circumstances under which the arrests had to be effected. The District Collector is doing lot for the socio-economic conditions of local Adivasis. In fact, he was acted with patience and self-restraint. Only when it was so needed the local police has registered cases against the accused persons on the basis of complaints and allegations found during investigation.
18. A Rejoinder has come to be filed by the Petitioner adjudication denying the various statements made in the Counter Affidavit. The views of the respondents towards the Petitioner Organisation and the tribals are also baseless that is clear from the manner in which they have characterised the Narmada Bachan Andolan. That movement has been highly acclaimed.
19. A detailed report has been given by Lawyers Committee for Human Rights on the violation of Human Rights between October, 1992 and February, 1993:-
” In separate interviews with the Lawyers Committee, those arrested described their treatment in the Alirajpur jail. Around 11.30 p.m., S.D.M. Kumar. SDD (P) Chaudhary and Town Inspector (II) S.S. Ansari came to the room where the five men were being held. (Silvy was held elsewhere.) Kumar, a civilian official, reportedly told the police present: “You police don’t know how to beat properly. I will show you how it’s done.”
In a signed statement, Khemla described what happened:
Vinod Kumar unlocked my handcuffs and then with the aid of Policeman Bhoi and Town Inspector Ansari, grabbed my hair, threw me on my stomach on the ground, scissored my legs any arched it (sic) over my back and then processed to sit on them. At the SDO(P)’s behest the (SDM Kumar) left me, than turned me over, tied my legs to a bench and I was hit on my soles with a stick around 20 times. He (Kumar) told me: “Just as Shankar Guha Niyogi was killed ,we would dump your body in a lake. Who do you think you are?” I fainted in pain for awhile.
As a form of humiliation, Khemla was then made to stand up and march in place, SDM Kumar called out “Faster Faster” and hit Khemla on his feet and back with a lathi.”
20. Similarly, there are other acts which will clearly establish the brutal treatment meted out by the police.
21. The members of the Petitioner organisation who were old and feeble local Adivasis will go to show the absurd nature of charges that the members of the Petitioner organisation were handcuffed because they were likely to abscond which is untrue. Alongwith this reply the report of Lawyers Committee for Human Rights is enclosed.
22. The Home Secretary, Madhya Pradesh has also filed a short Counter Affidavit to the effect that the Divisional Commissioner, Indore has been directed to enquire into the circumstances, legality and justification of handcuffing as well as whether there has been any unjustified, unwanted or excessive use of force against the members of the Petitioner organisation. The same Commissioner has also been directed to find out whether any member of the Petitioner organisation has been subjected to injustice, brutal or inhuman corruption during the detention or transportation in police custody.
23. By the order dated 19th May, 1993 where this Court expressed concern about the tone and the propriety of the Affidavit filed by the 5th Respondent exhibiting lack of awareness on the part of the officer as to human rights dimensions of the situation and disobedience of the pronouncement of this Court. It is also observed therein the allegations of torture in custody and parading of the undertrials in the handcuffs call for a serious notice and that are the officers involved in this violation of rights of these undertrials, some of whom, it is stated, hold Doctorate degree from prestigious universities, Sri Vinod Kumar was directed to show cause why the Court should not direct an investigation and if such investigation justifies prosecution of these officers. There has been some atonement of the state of the pleadings by the Home Secretary who has understood the seriousness of the matter. But the matter is too serious to be dealt with lightly.
24. Thereafter Vinod Kumar, respondent No. 5 filed an Affidavit that he is against hand-cuffing as the said act is degrading apart from being illegal and contrary to the dictates of this Court.
25. This Court has also directed the Commissioner, Indore Division to enquire into the incidents and find out the guilty persons. The 1st respondent (Home Secretary) has filed an Affidavit under the instructions of Police Superintendent, Jhabua. The police personnel alleged to be responsible for hand-cuffing have been placed under suspension. The 3rd Respondent (Superintendent of Police, Jhabua) states that he is against hand-cuffing. From the records he would state that hand-cuffing became necessary since the accused resisted the arrest and made attempts to run away. Besides, a large number of supporters of the Petitioner organisation reached Alirajpur on knowing the arrest of the accused persons. There was strong possibility that they would have attempted to free the accused persons from the police custody.
26. The 4th Respondent (Rehabilitation Officer, Alirajpur) denies any knowledge about hand-cuffing. Likewise, the 6th Respondent states that he is against hand-cuffing and such a hand-cuffing did not take place.
27. The 7th Respondent denies the allegation of physical torture.
28. The 8th Respondent (Sub-Inspector of Police, Sandwa, Alirajpur District) gives the following reasons for hand-cuffing:-
“The members of the Petitioner organisation and other persons were named as accused persons, after the investigation these accused persons were arrested at Indore, Alirajpur and at Sandwa, at the time of arrest they made an attempt to run away from the Police Custody. They were handcuffed by the Policemen from my Police Station and accordingly the noting was made in case diary about the circumstances in which handcuffing was done by Police. The main reasons for handcuffing as recorded by me in case diary are (1) That accused persons made continuous efforts to resists arrest and to run away from Police Custody and (2) That large gathering of their supporters by knowing their arrest had reached at Alirajpur and from their mood and conduct there was strong possibility that they may forcibly free the accused person from police custody.”
29. The 9th Respondent ASI of Police Chowki, Umrali, P.S. Sonawa distt. Jhabua denies the allegations made against him. The 10th Respondent Head Constable states that there is no personal allegations against him.
30. All these allegations are denied by a rejoinder reiterating the averments in the main Writ Petition.
31. The District Collector, Jhabua by his Affidavit dated 12th July, 1993 has denied the allegations levelled against him.
32. The 5th Respondent, SDM, has stated that he is not in a position to state whether hand-cuffing stated to have taken place and in fact taken place and who were responsible for that hand-cuffing. His duties as SDM did not include any control or supervision of the conduct of the police personnel who may be involved in the said hand-cuffing. As SDM he was mainly responsible for maintenance of public peace and order.
33. The 6th Respondent S.D.O., Alirajpur District states that at the time of hand-cuffing on 3.2.1993 he was not present. The 7th Respondent, Town Inspector of Police Station, Alirajpur gives the details as to how the police party led by Moti Ram Kher, Assistant Sub-Inspector of Police went to Indore where the absconding accused persons namely Ravi Amit and 7 others were arrested with great difficulty with the help of Indore Police. While Ms. Amita Baviskar and her associates wanted in the crime escaped and they were arrested. The reason for hand-cuffing was contemporaneously recorded. The accused had to be hand-cuffed because there was very likelihood.
34. Similarly, the 11th Respondent, Head Constable under suspension has filed the Counter Affidavit as to the circumstances for which the hand-cuffing was necessary. He would take the stand that there has not been any disobedience of the directions of this Court. He would not have taken part in the acts of hand-cuffing if he had prior knowledge or notice of law laid down by his Court. Therefore, hand-cuffing was not intentional but has taken place due to error of judgment.
35. Shri B.K. Nigam, Judicial Magistrate, First Class, Alirajpur, District Jhabua denies allegations made against him by Dr. Amita Baviskar in her affidavit dated 1st June, 1993. He denies having stated that the Supreme Court decision in relation to hand-cuffing has no occupation and the police has the right to transport the accused as they want (with or without hand-cuffs). He tenders his apology for any lapse on his part. The stand of Shri Nigam is supported by the Advocates. By his statement dated 18th September, 1993 he again tenders his unqualified apology for the lapse on his part when the under-trial prisoners were produced in hand-cuffs in this Court immediate action for the removal of the hand-cuffs and against the escort party for taking them in Court in hand-cuffs was not taken.
36. The C.B.I. was directed to file its report by order dated 4.6.1993 which concludes as under:-
“The allegations put forth in the petitioner/affidavits of Dr. Amita Baviskar and annexures thereto do not find support even from the victims of alleged beating and torture in as much as they did not complain of any beating and torture at any occasion available to them subsequently in so many quarter. None, excepting four of the 15 victims (6 arrested at Kakarapa and 9 arrested in Indore) of alleged beating and tortured, complained to the Magistrate during two occasions available to them. Even the four victims of alleged beating and torture did not report so on the first occasion and their assertion of injuries on their bodies were not substantiated by medical examination conducted by a different Doctor. However, it was also found that the Police have not recorded the happenings faithfully but misrepresented the locking up of the six arrested persons on 30.10.1992 at Police Station, Sondwa whereas, infact they were locked up at Police Station, Alirajpur.
In conclusion it is found that the said allegations are not proved by sufficient evidence.”
37. The above detained narration shows the present sordid picture and the sorrowful plight of public spirited men who desire to prevent exploitation of poor Adivasis. It cannot be denied that there have been acts by the police which should concern everyone who values human rights. It cannot be said that the day of the silent poor is over. There is anger and bitterness among those who are poverty stricken. One should have regard to these aspects in enforcing law.
38. We are of the confirmed view that the law enforcement problem has always been and will remain a human problem. Unfortunately, in this case we find that the respondents have not acted with the responsibility that is expected from them. The report of the C.B.I. which we have extracted above shows how the police tried to be clever. The report states that the police has not recorded the happenings faithfully but misrepresented the locking up of a arrested persons on 30th October, 1992 in the police station, Sandwa. On the contrary, the facts disclosed that they were locked up at Police Station Alirajpur.
39. Further the report of CBI also records as under :
“However a discrepancy has been discerned in regard to the destination of the six accused from village Kakrana. Two police witnesses have stated that the accused were not taken to Police Station Sondwa, as shown in the police records. The respondent No. 7 S.S. Ansari got recorded one entry at S.No. 703, time 11.45 A.M. on 31.10.1992 in the General Diary of Police Station Sondwa that the six arrested persons were taken from police station Sondwa in police vehicle for production before the Judicial Magistrate First Class, Alirajpur escorted by two Head Constable. This entry does not indicate the names and badge numbers of the eight Constables and one lady Constable. No constable of police station Sondwa has claimed escorting the arrested persons. The two drivers of the police vehicle, namely constable Suresh Kumar Tomar and Head Constable Goverdhan Lal stated that the arrested persons were never taken to police station Sondwa. But their oral statements are in variance with the entries made in the vehicle logbook.”
40. The facts also disclosed the animosity the officials have against the Petitioner organisation.
41. Yet there is another important matter namely the hand-cuffing which is to be taken serious note of . This Court has come down upon hand-cuffing in Prem Shankar Shukla v. Delhi Administration 1980 3 SCR 655. It was held at page 872 as follows:-
“Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Art 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand-and-foot fetter his limbs with hoops of steel, shuffle him aling in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.”
42. In the same case at pages 875-876 it was held as under:
“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 Art. 3 the procedure will be unfair and ban 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 minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off no escorting authority can overrule judicial directions. This is implicit in Art. 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty.”
43. The same principles are reiterated in Sunil Gupta V State of M.P.1990 3 SCC 119. It was held as follows:-
“Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause. They are not the persons who have got tendency to escape from the jail custody. In fact petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause. The offence for which they were tried and convicted under Section 186 of Indian Penal Code is only a bailable offence. Even assuming that they obstructed public servants in discharge of their public functions during ‘dharna’ or raise slogan inside or outside the court, that would not be sufficient cause to handcuff them. Further, there was no reason for handcuffing them while taking them to court from jail on April 22,1989. One judicial order by a competent court, that person comes within the judicial custody of the court. Therefore the taking of a person from a prison to the court or back from court to the prison by the escort party is only under the judicial orders of the court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisons in fetters, the escort party should record the reasons for doing so in writing and approve or disapprove the action of the escort party and issue necessary directions. It is most painful to note that the petitioners 1 and 2 who staged a ‘dharna’ for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party in utter violation of the principle underlying Article 21 of the Constitution of India. We strongly condemn this kind of conduct of the escort party arbitrarily and unreasonably humiliating the citizens of the country with obvious motive of pleasing ‘someone.”
44. These tow pronouncements constitute the law of the and, The plea of ignorance of the law only is stated to be rejected. What is worse in this case is the Magistrate behaving in this way. We are of the view that Magistracy requires to be sensitised to the values of human dignity and to the restraint on power. When it allows in inhuman conduct on that part of the police, it exhibits both the indifference and insensitiveness to human dignity and constitutional rights of the citizens. There could be no worse lapse on the part of the judiciary which is the sentinel of these great liberties. As Jeseph Addison said:-
“Better to die ten thousand deaths than wound my honor.”
45. If dignity or honor vanishes what remains of life. In these circumstances to uphold human values and to protect the rights guaranteed under the Constitution, we hereby direct:-
1) the C.B.I. to investigate and register cases and prosecute of the officers however, high or low in the hierarchy of administration for these serious lapses;
2) the trials of such cases shall take place outside the District of Jhabua at Indore District & Sessions Court.
46. For this purpose, the necessary applications may be moved before the High Court under Section 406 of the Code of Criminal Procedure. The writ petition is allowed accordingly. The contempt application shall be posted after three weeks.
1 The petitioner Khedat Mazdoor chetna Sangath is a registered Trade Union of Bhil, Bhilala, Mankar and Naik tribals of Alirajpur Tehsir in Jhabua District of Madhya Pradesh. It was started in October 1982. The object was to protest against and prevent the exploitation of the tribals. The constructions of Sardar Sarover Dam on the river Narmada is again another issue for which the petitioner’s association has been fighting for.
2. In the high hills of the Vindhya range, south of Jhabua District, massive deforestation has taken place. That has resulted in degradation and the productivity has reduced so much so, Jhabua has become chronically drought prone area. This has led to large scale crime, the people being poor wanted to make both ends meet.
3. The petitioner’s association has fought for access to forest resources which has been denied to them. Today, equally it has been a crusade against corruption. The Sangath has strengthened the traditional tribals custom of community resolution of disputes through, Panchayatas corrupt police officials have been publicly arraigned, departmental enquiries have been instituted on complaints lodged: cases have also been lodged; payment of minimum wages and eight hours working for a day have been secured. Further, the petitioner’s association demands environmental regeneration; social ameliorative measures like educating them and promoting their culture. Encouragement of knowledge regarding herbal medicines sponsoring Grain Banks and Co-operative Marketing have been undertaken in a large scale . Such measures have yielded good results.
4. The Sangath is wedded to the adoption of peaceful and constitutional means of mobilisation and protest and constructive developmental work with the aim of building up a strong tribal identity control both the economy and politics at the local level and capable of contributing creatively to the worldwide struggle for a more sustainable and equal developmental regime. Recently, there have been acts of repressions and police violence and atrocities perpetrated on the members of the petitioner’s association and local adivasis on 30.10.1992. The Jhabua Collector R.S.Julania, respondent No.2 held a meeting in Kakrana concerning submergence of zone villages. The Collector warned the people that if they persisted in their resistance, the combined might of the State-lathi, gun and pen would be used against them. When the meeting ended, seven activists of sangath were arrested. Of these, six were brutally beaten in the Alirajpur police station by the S.D.M. Vinod Kumar. On being presented before the Magistrate, when a demand was made for medical examination and the injuries being noted, that was denied under police pressure.
5. After meeting the police started arresting them one by one. This was on the basis of a false FIR registered at police station Sondva. On 12.12.1992 the police officials brutally beat up the members of the Petitioner Organisation in police custody.
6. On 17th November 1992 the Petitioner Khemla Aujanharia was arrested by the Alirajpur police who was handcuffed and paraded throughout the town by the police. Thereafter the police registered another FIR for effecting the arrest with regard to rally on 10th November 1992 in which it was alleged that Khemla was involved. This is false since he was in Kerala on 15th October, 1992 when they alleged incidents are stated to have taken place. In evidence of this the petitioner has annexed a letter of the Executive Director of GHRUTI evidencing Khemla’s participation in Kerala between 12th and 17th October 1992. Similar arrests of innocent people have been taking place. For trivial incidents they have been registering FIRs. Most of these are false FIRs. Falsity of these FIRs 11 of 1993 regarding the incidents of 22nd January had been registered at the instance of Pram Lal Nigam, an official of Narmada Development Authority.
7. On 2nd February, 9 activists who had gone to Indore to hold the Press Conference for countering the false charge made by the Collector were arrested. They were brought to Alirajpur where they were beaten in police custody. They were then handcuffed and paraded in the streets of Alirajpur. Concerning this Rahul N Ram and Ravi made a written complaint on 8.2.1993 to the Magistrate about the harassment and torture in police custody. In all, 28 people have been arrested between 31st January and 23rd February. They were charged for attempted murder. On 29th January 1993 Rahul N Ram was supposed to have attacked the police when he was in Baroda. The acts of violence, looting and destruction committed by the police on the villagers of Anjanwadan between 29th January to 2nd February 1993 were reported extensively by the local as well as notional press. A team of 3 highly respected persons investigated into it and submitted a report on 12th February 1993 that there was large scale brutal violence and terror perpetrated by the police on the Adivasis and activists of the petitioner organisation.
8. Besides the police terrorising the Adivasis and members of the Petitioner Organisation, the systematic campaign to malign the petitioner organisation by issuing false press releases.
9. All the above facts and circumstances leave no manner of doubt that the local administration including the Collector of Jhabua and S.P. of police are determined to crush the petitioner organisation by resorting to all kinds of illegal arrests, intimidation, violence, torture in police custody and even gone to the extent of looting and wantonly destroying the property of the local Adivasi villagers.
10 The petitioner organisation states that all these have been done under instructions of the Collector of Jhabua who had developed on inexplicable hostility and animosity against the members of the Petitioner Organisation. In fact the personally participated in belabouring of Shri Khemla. These acts are not only violative of the fundamental rights of the members of the Petitioner Organisation but also of the local Adivasis. If such acts are allowed unchecked and undeterred, it will lead to a complete repression of all voluntary and social organisation which are considered to be a hindrance to a corrupt, brutal and exploitative administration. This will reduce the country to a police state. It is therefore, absolutely essential in the interest of justice, human dignity and democracy that this Court must intervene: order an investigation determine the correct facts and take strongest possible action against the respondents who are responsible for these atrocities.
11. Under these circumstances , the following prayers are made:-
a) restrain the Respondents from harassing and arresting the members of the Petitioner organisation;
b) order an enquiry by an appropriate Commissioner into the atrocities committed by the Respondents on the members of the Petitioner organisation and other local tribals narrated in the incidents above;
c) punish the Respondents especially Respondent No.2 and any other officials who are found guilty of violating the rights of members of the Petitioner Organisation or local adivasis;
d) order the Respondents to pay compensation to the Petitioner organisation, its members and the local adivasis who have been tortured and whose rights have been violated and whose properties have been destroyed; and
e) quash the false FIRs registered against the members of the Petitioner Organisation i.e.FIR Nos.111 of 1992, 11,12,17 and 19 of 1993 at Police Station Sondus: and
f) pass any other or further order/s as this Hon’ble Court may deem fit and proper.
12. The 5th respondent, S.D.M., Alirajpur, Jhabua has filed a counter affidavit in which he explained the background of the case. It read:
“Alirajpur is a remote sub-division of Jhabua district having more than 85% of population coming under Schedule Tribes. People of this area usually carry bows and arrows and falies (Sickles) with them and they are always under the influence of country liquor or toddy. On very petty issues they quarrel among themselves and attack each other with sickles, arrows and stones fired from Gofun. These stone projectiles are very deadly and a person may even die if hit by them. Most of the deaths are cause by arrow, Gofun and suckles in the area.”
13. There was cordial relationship between the Collector and the Petitioner organisation to start with. He felt that they had a common goal of helping the tribals and fighting against corruption but in due course of time instead of doing service to the tribal the area of working of the Petitioner shifted towards Anti Dam Movement. 193 village of Madhya Pradesh State are coming under submergence, either fully or partially. Jhabua is one of the three districts of Madhya Pradesh affected by Sardar Sarover project. In this district out of 26 villages, 12 villages fully and 14 partially are coming under submergence. Consequently, the affected persons will have to be rehabilitated. The agitationists often criticise that the Government is not serious about rehabilitation.
14. On 15th October, 1992 when Narmada valley Development Authority rehabilitation party returned to Kakarapa from interior and unapproachable villages after accomplishing their work they were gheraoed and confined by the activists of the Petitioner organisation particularly Ms.Silvy alias Smt. Chittartupa Palit and about 150 tribals armed with bows-arrows, falivas and other lethal weapons forced the officials to raise antigovernment slogans under the threat of dire consequences including death. The officials were forced to remove the shoes and sleepers and hold the same in their hands. They were chased upto a distance of 2Kms. till Head Constable and the Block Development Officer came to their rescue. The Petitioner organisation also forced the drivers to flee away alongwith their jeeps from the village of Kakrana. This barbaric and uncivilised action speaks about the means of the Sangathan through which they wish to achieve their goal in Anti-Dam Agitation. The tribals have been indulging in violent activities. Therefore , necessary action has to be taken.
14A. As regards handcuffing it is stated as follows:-
“The petitioner have alleged that the members of the Organisation had been hand-cuffed by the local Administration. It is so because the handcuffing could not be avoided in view of the previous history of their indulging in crime. They not only tried to abscond but also absconded successfully and it took almost 15 days time to arrest all of them. To avoid the process of law to take its natural course the accused persons had escaped to Indore through tedious route requiring 15 to 20 K.M. Walk. At indore they held Press Conference and throughout Press Conference they Police kept patience and allowed them to complete, After the Press Conference was over Police tried to arrest the culprits but all of them attempted to run away. Mr.Rahul and Mrs.Anita succeeded in running away and therefore there was ample evidence that they are not law abiding citizens and they would have run away to avoid arrest at any cost. While under Police custody at Alirajpur they raised highly inflamatory and inciting slogans. Ms, Megha Patekar in public speech at Alirajpur threatened the Administration that local tribals will take up arms and the naxalism will come in the area. Further the distance of police station and court is about 1-1/2 K.M. and there two routes to the police Police Station both going through the town. None of Police Station in the Madhya Pradesh is provided with any vehicle even half of the Gazetted officers are not having vehicles. Therefore, in this background the Escort Commandor apprehended serious danger and therefore keeping in mind the security, the accused persons were hand-cuffed. Even the accused persons were produced before the learned judicial Magistrate in hand-cuffed and by granting police remand the learned Magistrate keeping in view the nature of offence committed by them impliedly approved of the action of hand-cuff.”
15. Incitement to violence and open encroachment of tribals to encroach upon the forest lands and to indulge in deforestation are activities which cannot be permitted. Those indulging in criminal activities could be arrested only after great difficulty. Handcuffing has been done only after the Escort Commander was satisfied as per the rules under Madhya Pradesh Police Manual.
16. It is incorrect to state that the local police has been indulging in looting, violence and destruction of properties of the members of the Petitioner organisation. In relation to the alleged corruption number of cases have been registered. The Government is very strongly fighting against it. Even after the incident of 22nd January,1993 the administration moved to settle the issues in a cordial atmosphere but nothing could be achieved in view of the hostile attitude of the Petitioner organisation. The members of the Petitioner organisation are in the habit of making false and frivolous allegations against the local administration and police personnel. The Judicial Magistrate examined the complaints of police torture and beating. He found on a perusal of a medical report the allegations were baseless.
17. The detailed Counter Affidavit further proceeds to state as to the circumstances under which the arrests had to be effected. The District Collector is doing lot for the socio-economic conditions of local Adivasis. In fact, he was acted with patience and self-restraint. Only when it was so needed the local police has registered cases against the accused persons on the basis of complaints and allegations found during investigation.
18. A Rejoinder has come to be filed by the Petitioner adjudication denying the various statements made in the Counter Affidavit. The views of the respondents towards the Petitioner Organisation and the tribals are also baseless that is clear from the manner in which they have characterised the Narmada Bachan Andolan. That movement has been highly acclaimed.
19. A detailed report has been given by Lawyers Committee for Human Rights on the violation of Human Rights between October, 1992 and February, 1993:-
” In separate interviews with the Lawyers Committee, those arrested described their treatment in the Alirajpur jail. Around 11.30 p.m., S.D.M. Kumar. SDD (P) Chaudhary and Town Inspector (II) S.S. Ansari came to the room where the five men were being held. (Silvy was held elsewhere.) Kumar, a civilian official, reportedly told the police present: “You police don’t know how to beat properly. I will show you how it’s done.”
In a signed statement, Khemla described what happened:
Vinod Kumar unlocked my handcuffs and then with the aid of Policeman Bhoi and Town Inspector Ansari, grabbed my hair, threw me on my stomach on the ground, scissored my legs any arched it (sic) over my back and then processed to sit on them. At the SDO(P)’s behest the (SDM Kumar) left me, than turned me over, tied my legs to a bench and I was hit on my soles with a stick around 20 times. He (Kumar) told me: “Just as Shankar Guha Niyogi was killed ,we would dump your body in a lake. Who do you think you are?” I fainted in pain for awhile.
As a form of humiliation, Khemla was then made to stand up and march in place, SDM Kumar called out “Faster Faster” and hit Khemla on his feet and back with a lathi.”
20. Similarly, there are other acts which will clearly establish the brutal treatment meted out by the police.
21. The members of the Petitioner organisation who were old and feeble local Adivasis will go to show the absurd nature of charges that the members of the Petitioner organisation were handcuffed because they were likely to abscond which is untrue. Alongwith this reply the report of Lawyers Committee for Human Rights is enclosed.
22. The Home Secretary, Madhya Pradesh has also filed a short Counter Affidavit to the effect that the Divisional Commissioner, Indore has been directed to enquire into the circumstances, legality and justification of handcuffing as well as whether there has been any unjustified, unwanted or excessive use of force against the members of the Petitioner organisation. The same Commissioner has also been directed to find out whether any member of the Petitioner organisation has been subjected to injustice, brutal or inhuman corruption during the detention or transportation in police custody.
23. By the order dated 19th May, 1993 where this Court expressed concern about the tone and the propriety of the Affidavit filed by the 5th Respondent exhibiting lack of awareness on the part of the officer as to human rights dimensions of the situation and disobedience of the pronouncement of this Court. It is also observed therein the allegations of torture in custody and parading of the undertrials in the handcuffs call for a serious notice and that are the officers involved in this violation of rights of these undertrials, some of whom, it is stated, hold Doctorate degree from prestigious universities, Sri Vinod Kumar was directed to show cause why the Court should not direct an investigation and if such investigation justifies prosecution of these officers. There has been some atonement of the state of the pleadings by the Home Secretary who has understood the seriousness of the matter. But the matter is too serious to be dealt with lightly.
24. Thereafter Vinod Kumar, respondent No. 5 filed an Affidavit that he is against hand-cuffing as the said act is degrading apart from being illegal and contrary to the dictates of this Court.
25. This Court has also directed the Commissioner, Indore Division to enquire into the incidents and find out the guilty persons. The 1st respondent (Home Secretary) has filed an Affidavit under the instructions of Police Superintendent, Jhabua. The police personnel alleged to be responsible for hand-cuffing have been placed under suspension. The 3rd Respondent (Superintendent of Police, Jhabua) states that he is against hand-cuffing. From the records he would state that hand-cuffing became necessary since the accused resisted the arrest and made attempts to run away. Besides, a large number of supporters of the Petitioner organisation reached Alirajpur on knowing the arrest of the accused persons. There was strong possibility that they would have attempted to free the accused persons from the police custody.
26. The 4th Respondent (Rehabilitation Officer, Alirajpur) denies any knowledge about hand-cuffing. Likewise, the 6th Respondent states that he is against hand-cuffing and such a hand-cuffing did not take place.
27. The 7th Respondent denies the allegation of physical torture.
28. The 8th Respondent (Sub-Inspector of Police, Sandwa, Alirajpur District) gives the following reasons for hand-cuffing:-
“The members of the Petitioner organisation and other persons were named as accused persons, after the investigation these accused persons were arrested at Indore, Alirajpur and at Sandwa, at the time of arrest they made an attempt to run away from the Police Custody. They were handcuffed by the Policemen from my Police Station and accordingly the noting was made in case diary about the circumstances in which handcuffing was done by Police. The main reasons for handcuffing as recorded by me in case diary are (1) That accused persons made continuous efforts to resists arrest and to run away from Police Custody and (2) That large gathering of their supporters by knowing their arrest had reached at Alirajpur and from their mood and conduct there was strong possibility that they may forcibly free the accused person from police custody.”
29. The 9th Respondent ASI of Police Chowki, Umrali, P.S. Sonawa distt. Jhabua denies the allegations made against him. The 10th Respondent Head Constable states that there is no personal allegations against him.
30. All these allegations are denied by a rejoinder reiterating the averments in the main Writ Petition.
31. The District Collector, Jhabua by his Affidavit dated 12th July, 1993 has denied the allegations levelled against him.
32. The 5th Respondent, SDM, has stated that he is not in a position to state whether hand-cuffing stated to have taken place and in fact taken place and who were responsible for that hand-cuffing. His duties as SDM did not include any control or supervision of the conduct of the police personnel who may be involved in the said hand-cuffing. As SDM he was mainly responsible for maintenance of public peace and order.
33. The 6th Respondent S.D.O., Alirajpur District states that at the time of hand-cuffing on 3.2.1993 he was not present. The 7th Respondent, Town Inspector of Police Station, Alirajpur gives the details as to how the police party led by Moti Ram Kher, Assistant Sub-Inspector of Police went to Indore where the absconding accused persons namely Ravi Amit and 7 others were arrested with great difficulty with the help of Indore Police. While Ms. Amita Baviskar and her associates wanted in the crime escaped and they were arrested. The reason for hand-cuffing was contemporaneously recorded. The accused had to be hand-cuffed because there was very likelihood.
34. Similarly, the 11th Respondent, Head Constable under suspension has filed the Counter Affidavit as to the circumstances for which the hand-cuffing was necessary. He would take the stand that there has not been any disobedience of the directions of this Court. He would not have taken part in the acts of hand-cuffing if he had prior knowledge or notice of law laid down by his Court. Therefore, hand-cuffing was not intentional but has taken place due to error of judgment.
35. Shri B.K. Nigam, Judicial Magistrate, First Class, Alirajpur, District Jhabua denies allegations made against him by Dr. Amita Baviskar in her affidavit dated 1st June, 1993. He denies having stated that the Supreme Court decision in relation to hand-cuffing has no occupation and the police has the right to transport the accused as they want (with or without hand-cuffs). He tenders his apology for any lapse on his part. The stand of Shri Nigam is supported by the Advocates. By his statement dated 18th September, 1993 he again tenders his unqualified apology for the lapse on his part when the under-trial prisoners were produced in hand-cuffs in this Court immediate action for the removal of the hand-cuffs and against the escort party for taking them in Court in hand-cuffs was not taken.
36. The C.B.I. was directed to file its report by order dated 4.6.1993 which concludes as under:-
“The allegations put forth in the petitioner/affidavits of Dr. Amita Baviskar and annexures thereto do not find support even from the victims of alleged beating and torture in as much as they did not complain of any beating and torture at any occasion available to them subsequently in so many quarter. None, excepting four of the 15 victims (6 arrested at Kakarapa and 9 arrested in Indore) of alleged beating and tortured, complained to the Magistrate during two occasions available to them. Even the four victims of alleged beating and torture did not report so on the first occasion and their assertion of injuries on their bodies were not substantiated by medical examination conducted by a different Doctor. However, it was also found that the Police have not recorded the happenings faithfully but misrepresented the locking up of the six arrested persons on 30.10.1992 at Police Station, Sondwa whereas, infact they were locked up at Police Station, Alirajpur.
In conclusion it is found that the said allegations are not proved by sufficient evidence.”
37. The above detained narration shows the present sordid picture and the sorrowful plight of public spirited men who desire to prevent exploitation of poor Adivasis. It cannot be denied that there have been acts by the police which should concern everyone who values human rights. It cannot be said that the day of the silent poor is over. There is anger and bitterness among those who are poverty stricken. One should have regard to these aspects in enforcing law.
38. We are of the confirmed view that the law enforcement problem has always been and will remain a human problem. Unfortunately, in this case we find that the respondents have not acted with the responsibility that is expected from them. The report of the C.B.I. which we have extracted above shows how the police tried to be clever. The report states that the police has not recorded the happenings faithfully but misrepresented the locking up of a arrested persons on 30th October, 1992 in the police station, Sandwa. On the contrary, the facts disclosed that they were locked up at Police Station Alirajpur.
39. Further the report of CBI also records as under :
“However a discrepancy has been discerned in regard to the destination of the six accused from village Kakrana. Two police witnesses have stated that the accused were not taken to Police Station Sondwa, as shown in the police records. The respondent No. 7 S.S. Ansari got recorded one entry at S.No. 703, time 11.45 A.M. on 31.10.1992 in the General Diary of Police Station Sondwa that the six arrested persons were taken from police station Sondwa in police vehicle for production before the Judicial Magistrate First Class, Alirajpur escorted by two Head Constable. This entry does not indicate the names and badge numbers of the eight Constables and one lady Constable. No constable of police station Sondwa has claimed escorting the arrested persons. The two drivers of the police vehicle, namely constable Suresh Kumar Tomar and Head Constable Goverdhan Lal stated that the arrested persons were never taken to police station Sondwa. But their oral statements are in variance with the entries made in the vehicle logbook.”
40. The facts also disclosed the animosity the officials have against the Petitioner organisation.
41. Yet there is another important matter namely the hand-cuffing which is to be taken serious note of . This Court has come down upon hand-cuffing in Prem Shankar Shukla v. Delhi Administration 1980 3 SCR 655. It was held at page 872 as follows:-
“Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Art 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand-and-foot fetter his limbs with hoops of steel, shuffle him aling in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture.”
42. In the same case at pages 875-876 it was held as under:
“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 Art. 3 the procedure will be unfair and ban 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 minions of the police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off no escorting authority can overrule judicial directions. This is implicit in Art. 21 which insists upon fairness, reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty.”
43. The same principles are reiterated in Sunil Gupta V State of M.P.1990 3 SCC 119. It was held as follows:-
“Coming to the case on hand, we are satisfied that the petitioners are educated persons and selflessly devoting their service to the public cause. They are not the persons who have got tendency to escape from the jail custody. In fact petitioners 1 and 2 even refused to come out on bail, but chose to continue in prison for a public cause. The offence for which they were tried and convicted under Section 186 of Indian Penal Code is only a bailable offence. Even assuming that they obstructed public servants in discharge of their public functions during ‘dharna’ or raise slogan inside or outside the court, that would not be sufficient cause to handcuff them. Further, there was no reason for handcuffing them while taking them to court from jail on April 22,1989. One judicial order by a competent court, that person comes within the judicial custody of the court. Therefore the taking of a person from a prison to the court or back from court to the prison by the escort party is only under the judicial orders of the court. Therefore, even if extreme circumstances necessitate the escort party to bind the prisons in fetters, the escort party should record the reasons for doing so in writing and approve or disapprove the action of the escort party and issue necessary directions. It is most painful to note that the petitioners 1 and 2 who staged a ‘dharna’ for public cause and voluntarily submitted themselves for arrest and who had no tendency to escape had been subjected to humiliation by being handcuffed which act of the escort party in utter violation of the principle underlying Article 21 of the Constitution of India. We strongly condemn this kind of conduct of the escort party arbitrarily and unreasonably humiliating the citizens of the country with obvious motive of pleasing ‘someone.”
44. These tow pronouncements constitute the law of the and, The plea of ignorance of the law only is stated to be rejected. What is worse in this case is the Magistrate behaving in this way. We are of the view that Magistracy requires to be sensitised to the values of human dignity and to the restraint on power. When it allows in inhuman conduct on that part of the police, it exhibits both the indifference and insensitiveness to human dignity and constitutional rights of the citizens. There could be no worse lapse on the part of the judiciary which is the sentinel of these great liberties. As Jeseph Addison said:-
“Better to die ten thousand deaths than wound my honor.”
45. If dignity or honor vanishes what remains of life. In these circumstances to uphold human values and to protect the rights guaranteed under the Constitution, we hereby direct:-
1) the C.B.I. to investigate and register cases and prosecute of the officers however, high or low in the hierarchy of administration for these serious lapses;
2) the trials of such cases shall take place outside the District of Jhabua at Indore District & Sessions Court.
46. For this purpose, the necessary applications may be moved before the High Court under Section 406 of the Code of Criminal Procedure. The writ petition is allowed accordingly. The contempt application shall be posted after three weeks.
