By observing that it is only under extreme circumstances that handcuffing of an accused can be resorted to. When such handcuffing is made, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court, the Karnataka High Court allowed the instant petition moved by the petitioner seeking compensation from the respondents on account of loss of his reputation, illegal detention and illegal handcuffing of the petitioner,even prior to the petitioner been proved guilty in an exclusive liable offence under the provision of the Negotiable Instrument Act, 1881
A Single bench of Justice Suraj Govindraj allowed the writ petition preferred by the petitioner seeking compensation from the respondents on account of loss of his reputation, illegal detention and illegal handcuffing of the petitioner, even prior to the petitioner been proved guilty in an exclusive liable offence under the provision of the Negotiable Instrument Act, 1881.
The Single Judge bench was of the view that the Section 46 of the Cr.P.C, indicates that a person can be arrested by touching or confining the body of the person to be arrested, unless, there is a submission to the custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest.
The petitioner filed this before the Court seeking for issuance of a writ of mandamus or any other writ or directions directing the respondents to grant sanction/ compensation of 25, 00,000, for the loss of reputation, illegal detention and illegal handcuffing of the petitioner,even prior to the petitioner been proved guilty in an exclusive liable offence under the provision of the Negotiable Instrument ACT, 1881.
It was further prayed that a writ of mandamus should be issued directing the respondents to ensure that the laws, rules, regulations, circulars, notifications etc., that have been issued by the Central Government Agencies & the State Government Agencies & the directions of the Hon’ble Apex Court & this Hon’ble Court are abided, prior to arresting the petitioner or calling the petitioner to the Police Station on the pretext of enquiry etc.
The factual background of the case was such that the petitioner claimed that he was a law student studying in Shikhan Prakash Mandal’s Law College at Raibag. Certain disputes arose between the petitioner and one Babu Anaappa @ Annu Gurav in respect of a mortgage deed executed in respect of agricultural lands belonging to the petitioner. In pursuance of the same, five criminal cases were filed against the petitioner for offences under Section 138 of Negotiable Instruments Act, 1881 on account of dishonour of cheques issued in pursuance of the said mortgage. As regards the dishonour of cheques, Babu Annappa filed five criminal proceedings.
The petitioner was arrested in furtherance of a non- bailable warrant issued by the II Additional Civil Judge vide order dated April 10, 2014 by the respondent third police sub inspector. The petitioner claimed that he was handcuffed and paraded with handcuffs, without producing the petitioner before the Court. The petitioner claimed that the said incident was even recorded. Subsequently, the petitioner moved a bail application in the said proceedings.
However, the same was rejected and the petitioner was remanded to judicial custody. Eventually, the order of conviction passed by the II Additional Civil Judge, wherein the 7th Additional Seventh and Sessions Court, stayed the order of conviction and sentence vide order dated October 19, 2019.
It was the case of the petitioner that despite the stay, the third respondent officials were illegally arresting and detaining the petitioner. He further stated that his fundamental right was violated by the respondents abusing their official position and to assail the same, the petitioner preferred the petition before this Court.
After considering the submissions of the parties, after pursuing the material on record, the Court observed that the questions that can be culled out for the instant matter for consideration were whether the accused who was arrested can be handcuffed? If so, under what circumstances. Secondly, was there any violation by the Arresting Officer, would the accused be eligible for compensation? And lastly on what basis, was the compensation required to be determined and paid.
In respect of the first issue the Court took into consideration Section 46 of the Code of Criminal Procedure which pertains with the manner of making an arrest. In view of the same, the Court observed that the aforesaid provision indicated that a person can be arrested by touching or confining the body of the person to be arrested, unless, there is a submission to the custody by word or action. It is only when there is a resistance to the arrest or evasion of arrest that the Police Officer may use all means necessary to effect the arrest. Additionally, the Court also took into account Section 49 of Cr.P.C and Section 220 of the Indian Penal Code.
Further Sections 831, 832, 833, 834 and 835 of the Karnataka Police Manual reads. A perusal of said provisions indicated that the prisoner should not be normally handcuffed, unless he is violent or disorderly or circumstances necessitate such handcuffing, the Court noted.
At this stage, reliance was placed on the case of Prem shankar shukla vs. delhi administration wherein the Apex Court made it is constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort.
Coming to the facts of the present case, the Court noted that the issue of concern in the instant matter was with respect to the arrest of a person and handcuffing of a person at that particular point of time. The first was concluded by the Court by observing that an accused who is arrested can normally not be handcuffed. It is only under extreme circumstances that handcuffing of an accused can be resorted to. When such handcuffing is made, the Arresting Officer is required to record the reasons for handcuffing, which would have to sustain the scrutiny of the Court.
With respect to the issue of compensation, the Court opined that the measure of damage should be on the basis of evidence and documents produced by the petitioner. In relation to the same, the Court stated that if there was a violation by the Arresting officer in putting handcuffs on the petitioner, the petitioner would be eligible for compensation.
It was also observed that to determine the amount of compensation there is no straightjacket formula which could determine the amount of compensation that has to be paid. The compensation which is required to be paid is by applying the principles of strict liability, the Court noted.
While awarding compensation, the Court would have to take into consideration the loss/damage that might have been caused to the person who has been handcuffed to compensate him/her for such damage. Apart from this, the Court would also have to consider the imposition of compensation as a deterrent to the Police Officers who do not discharge their duties in a proper manner and/or violate the applicable law, the Court remarked.
Thus, in light of the aforesaid findings, the Court allowed the writ petition, with a compensation of Rs 2 Lakhs.
Case name: SHRI. SUPRIT ISHWAR DIVATE v. THE STATE OF KARNATAKA
Picture Source : https://pixabay.com/photos/police-handcuffs-arrest-detention-2122373/
