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Nov 5, 2010

Prem Shankar Shukla Delhi Administration, AIR 1980 SC 1535

Hon'ble Supreme Court of India observed, “Handcuffing of accused should not be made in case of non-approval of same by Judicial Officer….
a telegram from one Shukla, prisoner lodged in the Tihar Jail, has prompted the present 'habeas' proceedings…. The petitioner claims that he is a 'better class' prisoner, a fact which is admitted, although one fails to understand how there can be a quasi-caste system among prisoners in the egalitarian context of Article 14. It is a sour fact of life that discriminatory treatment based upon wealth and circumstances dies hard under the Indian Sun. We hope the Ministry of Home Affairs and the Prison Administration will take due note of the survival after legal death of this invidious distinction and put all prisoners on the same footing unless there is a rational classification based upon health, age, academic or occupational needs or like legitimate ground and not irrelevant factors like wealth, political importance, social status and other criteria which are a hang-over of the hierarchical social structure hostile to the constitutional ethos….
In Sunil Butra's case (supra) it has been laid down by a Constitution Bench of this Court that imprisonment does not, ipso facto mean that fundamental rights desert the detainee….
Handcuffs should not be used in routine. They are to be used only where the person is desperate, rowdy or is involved in non-bailable offence. There should ordinarily be no occasion to handcuff persons occupying a good social position in public life, or professionals like jurists, advocates doctors, writers, educationists’ and well known journalists. This is at best an illustrative list; obviously it cannot be exhaustive. It is the spirit behind these instructions that should be understood. It shall be the duty of supervisory officers at various levels, the SHO primarily, to see that these instructions are strictly complied with. In case of non-observance of these instructions severe action should be taken against the defaulter….
The duty officers of the police station must also ensure that an accused when brought at the police station or dispatched, the facts where he was handcuffed or otherwise should be clearly mentioned along with the reasons for handcuffing in the relevant daily diary report. The SHO of the police station and ACP of the Sub-Division will occasionally check up the relevant daily diary to see that these instructions are being complied’ with by the police station staff….
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 Article 21….
Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort--and we declare that to be the law--the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under-trial is any different from a poor or pariah convict or under-trial in the matter of security risk ? An affluent in custody may be as dangerous or desperate as an indigent, if not more…..

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