This article is written by Ritwick Kundu, LL.B., 2nd year, Bharati Vidyapeeth during her internship at Le Droit India.
Keywords – Handcuffs, CrPC, IPC, Indian Constitution, Sunil Batra v/s. Delhi Administration, Sunil Gupta v/s. State of Madhya Pradesh, Prem Shankar Shukla v/s. Delhi Administration, Anjani Kumar Sinha v/s. State of Bihar.
Abstract –
The law takes care of everything from a major crime like murder to a tribal act of slapping, and the extent is so deep that even the handcuffs are taken care of. The law and the procedures for enforcing the law are fascinating subjects to study, and it is critical for the average person to understand their rights under the law; it is also the responsibility of authorities/officials to spread awareness about the rights and to keep up to date as the provisions change.
Introduction and explanation –
Human life is created by the “GOD”. Therefore, no one except the Almighty should control or detain us. But are humans following this simple code ? The answer is a no. In today’s day and age, you can say that humans want to abide by the natural phenomena of liberty and freedom, but due to the tact and willful acts of cheating, rape, murdering, Violating laws, etc., the authorities, who are acting under the authority of the sovereign, i.e., the government, who had to make laws that impose reasonable restrictions on an individual, be it a citizen or non-citizen in order to counter the anti-social elements. So, the work of the judiciary is to see that not even a tiny law is misused, like when to use handcuffs or not. The use of handcuffs by the police is a very small thing, but even this small pair of steel rings has a procedure and protocol to use them. The handcuff is a very small thing, but the impact on a person’s psychology can be huge.
The word “handcuff,” as per the English dictionary, is itself associated with prisoners. The literal meaning of the word handcuff is a ‘pair of metal rings which are joined together by chain and to be put around the wrist of the prisoner’. The tussle and conflict started when the laws start to be misused by the authorities, who are generally employed by the government to provide services to the general public. In this tussle, the judiciary is the one who has to take a stand and protect the victim by enlightening the laws related to his/her liberty. In fact, when a person is under trial and is not proved guilty, the sovereign authorities, generally the police, except in some special cases, should not cross the reasonable restriction part of the accused available under the Indian laws. Furthermore, forget about physically beating the accused; authorities cannot even use handcuffs to bring an accused to the honorable court or when arresting him/her, though in some special cases, after obtaining special permission, the police can use handcuffs depending on the magnitude of the person to be arrested or brought to the court.
So,the word itself is associated with prisoners. Perhaps, how can a common person or even a person whose trial is in progress be handcuffed. The laws related to handcuffs are prescribed in The Code of Criminal Procedure, 1973, popularly known as the Crpc, 1973. Section-41 related to when police arrest without a warrant and Section-46 related to how to arrest as per the CrPc, 1973.
Section-41, CrPC, 1973 – When police may arrest you without a warrant :-
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person – (a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub- section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.
Section – 46, CrPC, 1973 – Arrest how made :-
(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.
In the above stated sections of the CrPC, 1973, the word “handcuff” is not at all used. Therefore, the direct use of handcuffs is prohibited by law, but as in section-46 (2), if the person tries to resist the arrest, the police can use all means necessary to arrest the person. Here, in this part of section-46, the usage of all means necessary also indirectly gives a slight to using handcuffs, but that is also only when prior permission from the magistrate or court has been obtained by the police. In some special cases when the accused is someone who can either flee or do any mischief with the police while arrested or in transition, the magistrate or court generally gives permission to the police to use handcuffs if required to do so.
Cases –
In the case of Sunil Batra v/s. Delhi Administration, AIR-1978, SC 1675: the Honorable Supreme Court has stated that, “as a police officer is vested with power to restrain a person by handcuffing him, there is simultaneous restraint by the law on the police officer as to exercise of the power. The handcuffs should not be used in a routine manner. The minimum freedom of movement which even an under trial prisoner is entitled to under article-19 of the Indian Constitution, cannot be cut down cruelly by the application of handcuffs or other hoops’’.
In the case of Sunil Gupta v/s. State of Madhya Pradesh, 1990 SSC (Cr.) -440: the court stated that “the escorting authority should record contemporaneously the reasons for handcuffing an under trial prisoner even in the extreme cases and intimate the court, so that the court may consider the circumstances and issue necessary directions to the escort party’’.
In the case of Prem Shankar Shukla v/s. Delhi Administration, AIR, 1980, SC 1535: the Supreme Court stated that, “The involvement of the prisoner in a score of criminal cases is no ground for handcuffing, nor can a person be handcuffed only because he is charged with a grave offence. It cannot be used only for the convenience of the escort party. The rules, regulations, and manuals of various states authorizing the police to use handcuffs have been struck down as violate of article-14 of the Indian Constitution. The handcuffs can be used by the escorting police party if the prisoner is dangerous and desperate, or if the prisoner is likely to break out of custody or play the vanishing trick. The escorting party must form an opinion on the basis of the antecedents of the prisoner”.
In the case of Anjani Kumar Sinha v/s. State of Bihar, 1992: the honorable court stated that ‘the court focused on that police do not have unrestricted or unlimited power to handcuff a person. If there is a reasonable apprehension of a prisoner’s escape from custody or if tries to disturb peace by violence, than in that police may put the prisoner under handcuffs’.
The handcuffing act also violates articles 19, 21 and 22 of the Indian Constitution because article-19 deals with the protection of certain rights regarding freedom of speech, etc. and article-21 deals with the protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law, and article – 22 deals with protection against arrest and detention in certain cases.
Conclusion –
A police officer cannot handcuff an accused in a normal case, but if they want to, they must first obtain the magistrate’s permission. If a person is handcuffed, then the feelings he/she goes through could be true because even before the trial, he/she becomes a culprit in the eyes of the general public and our laws states that a person is innocent until proven guilty, so, this is also defeated in normal cases. It is not only about liberty; it is also about dignity, peace of mind and human rights available to the person. The authorities/officials should also raise awareness about a citizen’s rights and duties, as well as not to deprive the general public of their legal rights, because such an act can cause civil unrest and a decrease in trust in the sovereign, which can lead to a social upheaval in the country.
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