Handcuffing of an accused person is a violation of Article 21 of the Constitution and should only be resorted to when absolutely necessary.

HANSARIA, C. J.

( 1 ) PERSONAL liberty was so much cherished by the founding fathers that they made it a fundamental right which has almost been thrown to the winds in the present case, inasmuch as one Amarjit, aged about 18 years, had been handcuffed and put in chains while he was hospitalised and was in the Surgery Ward of S. C. B. Medical College Hospital, Cuttack. The apex Court, as the protector of fundamental rights, ever since 1978, in which year Sunil Batra v. Delhi Administrative, AIR 1978 SC 1675: (1978 Cri LJ 1741) saw the light of the day, has shown so much of averness to handcuffing that Justice Krishna Iyer had to unfold the entire jurisprudence on the subject by taking pains in writing a lengthy judgment by pin-pointing the circumstances under which handcuffing can be said to be not violative of Article 21 of the Constitution. The judgment of Krishna Iyer, J. was on the subject of bar-fetters put on a person while in prison. What was said in that regard has been applied to handcuffing of a person outside the prison as well.

( 2 ) SRI Mohapatra has drawn our attention to the various paragraphs of the aforesaid judgment in which the learned Judge has shown his deep concern for the protection of personal liberty and concluded his views in paragraph 187 by stating that handcuffing should be allowed to be put only when that is absolutely necessary.

( 3 ) SUNIL Batra's case was followed in Prem Shankar's case, AIR 1980 SC 1535 : (1980 Cri LJ 930) in which also Krishna Iyer, J. while dealing with handcuffing stated in Paragraph 22 that it 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. "

( 4 ) THEN came to the decision in Altenesh Rein v. Union of India, AIR 1988 SC 1768 in which even a direction was given to the Union of India to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to in conformity with the decision. It is not known whether the guidelines have been framed by the Union of India, but it seems nothing has been done by the State Government in this regard. In Sunil Gupta v. State of Madhya Pradesh, 1990 3 SCC 119, the Court required recording of reasons when a person remanded to judicial custody is put under handcuff while taking him from prison to Court and from Court to prison.

( 5 ) FINALLY reference may be made to State of Maharashtra v. Ravikant B. Patil, 1991 (5) JT 442 in which an undertrial prisoner was handcuffed while taking him through the streets, because of which a sum of Rupees 10,000/- was awarded as compensation which was made payable by the State.

( 6 ) WHAT happened in the present case is absolutely shocking, because as already noted, Amerjit was put under handcuff and chained while he was undergoing treatment in a surgical ward of a Government Medical College. This came to be done on the orders of a Havildar who entertained doubt that the accused might escape because he was neither physically handicapped nor disabled and some unknown anti-social persons used to visit him frequently, as stated in paragraph 4 of the counter-affidavit filed on15-12-1992 by the Circle Inspector of Police, Nayagarh, which find support from the report of Havildar in question. In this connection, we would first like to state that it seems to us incongruous that the decision to put Amarjit in chain was allowed to be taken even by a Havildar. In this connection we shall refer to paragraph 167 of Sunil Batra's case in which it was noted that Section 56 of the Prison's Act empowers only a Deputy Superintendent to put a person in iron followed by an immediate report to the Superintendent. We are informed by Sri Das, learned Government Advocate, that the Police Manual of this State does not contain any provision as to who can order for handcuffing and under what consideration