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2016 DIGILAW 147 (ORI)

State of Odisha v. Sushant Kumar Dhalasamant

2016-02-22

B.K.NAYAK

body2016
ORDER : 1. Mr. Patnaik, learned Additional Government Advocate for the petitioner-State and Mr. S. Mohapatra, learned Counsel for opposite parties. 2. In this application under Section 482, Cr.P.C., the petitioner prays for quashing the order dated 16.02.2016 passed by the learned S.D.J.M. (S), Cuttack in G.R. Case No. 228 of 2016 rejecting the petitioner's application for permitting the Investigating Officer to use handcuffs while taking the accused persons to different places during police remand. 3. The opposite parties have been implicated in several cases including commission of serious offences and they had managed to escape arrest since long. Now they have been arrested and taken on police remand for the purpose of investigation in several cases. One of such case is Chauliaganj P.S. Case No. 29 dated 09.02.2016 registered under Section 364/302/201/120-8/34 of the I.P.C. read with Sections 25 and 27 of the Arms Act. In the said case on 16.01.2016 the Investigating Officer filed a petition before the learned S.D.J.M. (S), Cuttack for passing necessary orders for handcuffing the opposite parties-accused persons during police remand. It is stated in the petition that opposite parties have a long criminal history and they are habitual offenders involved in abduction, murder, extortion etc. and opposite party No.1-Susant Kumar Dhalasamant was absconding since last sixteen years to evade police arrest in five murder cases and previously he had also been booked under N.S.A. Opp. Party No. 2 has past history of trying to escape in Airfield P.S. Case No.227 of 2009. It is further alleged that during their police remand earlier in Chauliaganj P.S. Case No.12 of 2016, both opposite party Nos.1 and 2 became violent and there was huge congregation of people as well as their supporters at the time of their production in the Court and while taking them to different scenes of crime resulting in escort problem. It is lastly stated that during their current police remand they have to be taken to the States of Jharkhand and Andhra Pradesh for visiting different scenes of crime and in this process there is possibility of the accused persons escaping while attending the call of nature on the way during journey. 4. It is lastly stated that during their current police remand they have to be taken to the States of Jharkhand and Andhra Pradesh for visiting different scenes of crime and in this process there is possibility of the accused persons escaping while attending the call of nature on the way during journey. 4. The said petition of the Investigating Officer was rejected by the learned S.D.J.M. (S), Cuttack on the ground that the reasons assigned by the Investigating Officer for his apprehension does not appear to be cogent one, because the I.O. may intimate his higher authority for deployment of more police guards to avert any untoward situation. 5. The learned Counsel for the opposite parties have filed show cause affidavit and has stated that neither the past conduct of the abscondance of the opposite parties, nor their conduct after the present arrest does justify their handcuffing. It is also stated that even though opposite party Nos.1 and 2 have been taken on police remand on three occasions in different cases after their recent arrest, they have never tried to escape or shown any violent conduct and, therefore, there is no need to handcuff them. 6. It has been held by the Hon'ble Apex Court in the case of Prem Shankar Shukla v. Delhi Administration : (1980) 3 SCC 526 that to be consistent with Article 14 and 19 handcuffs must be last refuge as there are other ways for ensuring security. No prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort. Functional compulsions of security must reach that dismal degree where no alternative will work except manacles. There must be material, sufficiently stringent, to satisfy a reasonable mind that there is clear and present danger of escape of the prisoner who is being transported by breaking out of the police control and further that by adding to the escort part or other strategy, he cannot be kept under control. The onus of proof in this regard is on him who puts the person under irons. It is further observed that the belief that the prisoner is likely to break out of custody or play the vanishing trick must be based on antecedents which must be recorded and proneness to violence must be authentic. The onus of proof in this regard is on him who puts the person under irons. It is further observed that the belief that the prisoner is likely to break out of custody or play the vanishing trick must be based on antecedents which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the under trial is a crook or desperado, rowdy or maniac cannot suffice. Even where in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. It is also held that the authority responsible for the prisoner's custody, should consider the case of each prisoner individually and decide whether the prisoner is a person who having regard to his circumstances, general conduct, behaviour and character will attempt to escape or disturb the peace by becoming violent. That is the basic criterion, and all provisions relating to the imposition of restraint must be guided by it. Whether handcuffs or other restraint should be imposed on a prisoner is primarily a matter for the decision of the authority responsible for his custody and not of any other. It is a judgment to be exercised with reference to each individual case. The matter is one where the circumstances may change from one moment to another, and inevitably in some cases it may fall to the decision for the escorting authority midway to decide on imposing a restraint on the prisoner. Any prior decision of external authority cannot be reasonably imposed on the exercise of that power. 7. In the case of Citizens for Democracy Thoughts v. State of Assam and others, (1995) 3 SCC 743 , the Apex Court held as follows : "16. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner-convicted or under trial while lodged in a Jail anywhere in the country or while transporting or in transit from one Jail to another or from Jail to Court and back. The Police and the Jail authorities, on their own, shall have no authority to direct the handcuffing or any inmate of a Jail in the country or during transport from one Jail to another or from Jail to Court and back. 17. The Police and the Jail authorities, on their own, shall have no authority to direct the handcuffing or any inmate of a Jail in the country or during transport from one Jail to another or from Jail to Court and back. 17. Where the Police or the Jail authorities have well-grounded, basis for drawing a strong inference that a particular prisoner is likely to jump Jailor break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner." 8. Coming to the case in hand, though it is alleged that the opposite parties are involved in several crimes from time to time and that opposite party Nos. 1 and 2 had successfully evaded arrest in the past, there is no material before this Court to suggest that they were attempting to escape from custody or creating situation either by themselves or through their supporters or henchmen to escape from custody. Therefore, no general direction can be issued at present for handcuffing the opposite parties while taking them to different places for the purpose of investigation. As the learned S.D.J.M. has stated in the impugned order, the Investigating Officer may make arrangements for better escort and security. It is however, open to the Investigating Officer to handcuff the opposite parties, if the situation so demands during their journey to different places for the purpose of investigation and such action shall have to be justified later before the learned S.D.J.M. (S), Cuttack. Accordingly, the CRLMC is disposed of. CRLMC disposed of.