To handcuff or not to handcuff — Hafiz Hassan

MARCH 18 — In Sunil Gupta & Ors vs State Of Madhya Pradesh & Ors [1990] the Supreme Court of India was presented with yet another occasion to consider the practice of handcuffing persons under custody to and from the court.

Justice Pandian SR, who delivered the judgment of the Court, said:

“This Court on several occasions has made weighty pronouncements decrying and severely condemning the conduct of the escort police in handcuffing the prisoners without any justification.

“Inspite of it, it is very unfortunate that the Courts have to repeat and re-repeat to disapproval of unjustifiable handcuffing … [T]his kind of complaint cannot be dismissed as a daily sight to be pitied and buried but [must] be examined.

“[W]e must critically examine the justification offered by the [police] for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised.

“Chinnappa Reddy J in Bhim Singh, MLA v State of J & K & Others [1985] 4 SCC 677 has expressed his view that police officers should have greatest regard for personal liberty of citizens in the following words: “Police officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct.”

The case of Sunil Gupta was cited by senior lawyer Karpal Singh in his argument before the High Court in the case of Ramanathan a/l Chelliah v Public Prosecutor [1994] for the handcuffs to be removed from the accused person, who he represented, while in court.

The author argues that the use of handcuffs on accused persons must be exercised with strict, evidence-based discretion, as both courts and law enforcement have a duty to balance security needs with the protection of personal liberty. — Picture by Farhan Najib

In response, High Court Judge Syed Ahmad Idid referred to Section 20(3)(m) of the Police Act (Act 344) which places the duty on the police of escorting and guarding prisoners and other persons in custody. It is the duty of the police officer to take such lawful measures and do lawful acts as may be necessary.

The learned judge also referred to an earlier decision of the Indian Supreme Court in Prem Shankar Shukla v Delhi Administration [1980] where Justice Pathak RS said: “Whether handcuffs or other restraint should be imposed on a prisoner is a matter for the decision of the authority responsible for his custody.”

Justice Syed Admad Idid went on to observe that the normal procedure was that handcuffs would be removed when a person was in the accused’s dock, citing Justice Callow in Public Prosecutor v Wee Swee Siang [1948] who concluded that the use of handcuffs might be ordered where it was “essential” to do so.

The learned judge concluded that the order for the accused person to remain handcuffed was correct, legal and proper, but without a parting note:

“Perhaps it is timely to remind all Sessions Court judges and Magistrates to constantly be cautious when they come across similar situations in future.”

The accused, not being satisfied with the decision, appealed to the Court of Appeal which allowed the appeal.

Judge of Court of Appeal Shaik Daud, delivering the judgment of the Court, said:

“[I]t is in the sole discretion of the presiding officer to consider whether it is essential to have an accused person handcuffed be it during the entire trial or at the arraignment, if and when an application is made by the prosecution.

“Needless to say, such discretion must be exercised judiciously and not merely because the prosecution wants it to be … [I]n order for the court to exercise its discretion judiciously, there must be some credible material before the court in support [whether to handcuff or not].

“We are unanimously of the view that based on the alleged charges faced by the [accused], it can hardly be justified for him to be handcuffed. We are also of the view that the [presiding] judge did not, therefore, exercise her discretion judiciously.”

Like the High Court judge, the learned appellate judge took to the occasion to make a parting note:

“It is, therefore, timely to remind lower courts to [exercise] their discretion [judiciously].”

The above should also be a reminder to the police and other investigation authorities: To handcuff or not to handcuff, exercise the discretion properly — if not judiciously.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.