G.B. Patnaik, A.C.J.
1. A rather obnoxious circular issued by the Director General of Police to all the Police Stations for hand-cuffing the mother-in-law and leg-shackling the sister-in-law (SASU HATARE KADI, NANANDA HATARE BEDI) has aroused such public awareness for enforcement of its right to life under Article 21 of the Constitution that an Advocate of this Court representing the People's Union for Civil Liberties has filed the present writ application with the prayer that the aforesaid circular should be quashed and the persons connected with law and order should be directed not to transgress the limits of law. It appears from the records of the case as well as the relevant Government file that was produced before us that in a conference of Collectors and Superintendents of Police, the then Chief Minister of Orissa was very much shocked with the cases of dowry death and a decision was taken that some deterrent measure should be taken by way of arrest and hand-cuffing the mother-in-law and sister-in-law in dowry death cases and the slogan of hand-cuffing the mother-in-law and leg-shackling the sister-in-law should be publicised to create an awareness in the society. It is in deference to such wish of the Chief Minister, the Director General of Police had issued the impugned circular letter to all Police Stations concerned and the same having been publicised in the daily newspapers, the present application has been filed.
At the outset, we are indeed surprised how in the present day society where Courts are trying to preserve the human rights and right to life enshrined under Article 21 of the Constitution, such a derogatory decision could be taken by no less a person like the Chief Minister and even if such a decision had been taken, how could the Director General of Police, an officer belonging to the Indian Police Service, could issue such a letter to all persons concerned, merely because the Chief Minister of the State expressed the view in a conference of Collectors and Superintendents of Police.
2. A counter affidavit has been filed by one Deputy Superintendent of Police, C.I.D. (Crime Branch) working in the office of the Additional Director General of Police, Cuttack, not denying the issuance of the circular, but on the other hand, trying to support the circular/instruction issued by the Director General of Police. It is unfortunate that though the Director General of Police has himself been arrayed as a party, yet, he has not filed any return and on his authority, an affidavit has been sworn to by a Deputy Superintendent of Police. In a serious matter like this concerning the right to life and liberty of a citizen under Article 21 of the Constitution, where allegations have been made to the effect that issuance of the circular has been made in utter disregard to the law laid down by the Apex Court in several cases starting from Sunil Batra's case, yet the Director General has chosen not to file a return explaining the circumstances underwhich he had issued the circular in question. Be that as it may, since the issuance of the circular has not been denied and, on the other hand, has been sought to be supported, we think it appropriate to notice some of decisions on the point to indicate how blind a Police Officer can be in whose hand the law and order of the State rests and how unsafe the law and order problem would be in the hand of such a person.
3. In the case of Sunil Batra v. Delhi Administration and Ors., AIR 1978 SC 1675, the Apex Court was considering the question whether and to what extent the convicts inside the jail are entitled to the constitutional rights of a citizen. Their Lordships indicated the irrationality of bar fetters and had observed that unless it is absolutely necessary for such fetters they should not be put on a convict. Justice Krishna Iyer examined this question again in the case of Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535. After examining the provisions of the Punjab Police Manual, it was indicated that the provision in the Manual providing for hand-cuffing an under-trial prisoner who is an accused of a non-bailable offence punishable with more than three years prison term, is violative of Aricles 14, 19 and 21 of the Constitution. It was observed in the aforesaid decision that even in cases where handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. Otherwise, under Article 21 the procedure will be unfair and bad in law. It was further held :
'.......We lay down as necessarily implicit in Aricles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Such arbitary conduct surely slaps Article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Article 19 [See Sunil Batra (AIR 1978 SC 1675) (supra)], cannot be cut down cruelly by application of hand-cuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping.'
In the case of State of Maharashtra v. Ravikant B. Patil, 1991(5) Judgments Today page 142, as an under-trial prisoner had been hand-cuffed while taking him through the streets the Supreme Court awarded compensation to the tune of Rs. 10,000/- which was made payable by the State Government. This Court also considered this question in the case of Nanda Kishore Misra v. State of Orissa and Anr., 1993(1) ORL 257 and deprecated the practice of handcuffing and awarded compensation to the tune of Rs. 10,000/- which was payable by the State.
4. In case under the position of law, the decision taken by the Chief Minister to hand-cuff and leg-shackle mother-in-law and sister-in-law where there is an allegation of dowry death is nothing by sadistic, capricious, despotic and demoralising and violates the provisions of Article 19 of the Constitution. The Director General of Police who is the head of law and order enforcing machinery not only transgressed his powers in issuing such a confidential circular, but also acted in contravention of the law laid down by the Apex Court, referred to earlier, and we cannot but deprecate such action on the part of the Director. If the Director issues such a circular, one can imagine what would be the extent of atrocity in the level of illiterate Constable or Havildar who are supposed to enforce the circular in the remote villages. We are indeed shocked and pained to find that such a despotic, sadistic and demoralising circular has been issued by no less a person than the Director General of Police. It may be noticed that even the Police Manual prohibits of hand-cuffing of women and Rule 242 of the Police Manual prohibits leg-shackles. The Director General of Police in his overzealousness and anxiety to prove himself to be more loyal than the king himself appears to have issued the circular to please the then Chief Minister who had expressed his views in the conference of Collectors and Superintendents of Police, such an attitude of a public servant more particularly belonging to the Indian Police Service is highly reprehensible and should be condemned with heavy hand. The Police Administration in the hands of such a person is totally unsafe. We, therefore, strike down the circular letter that has been issued by the Director General of Police and leave it to the State Government to take such suitable action against the errant officer as the circumstances require.
The writ application is accordingly allowed.
D.M. Patnaik, J.
I agree.