@JUDGMENTTAG-ORDER
Raghvendra S. Chauhan, J.@mdashCharged for having allegedly committed a series of bomb blasts in Jaipur City, kept as under-trial at Central Jail, Jaipur and the Central Jail, Ahmedabad, being transported from the Jail under handcuffs, the petitioners have challenged the order dated 8-8-2012 passed by the Special Judge (Jaipur Bomb Blast Cases), Jaipur permitting their handcuffing by the police. The brief facts of the case are that on 13-5-2008, Jaipur was rocked by a series of bomb blasts. About seventy people died, and about 185 people were injured. Subsequently, the terrorists group called the Indian Mujahiddin, claimed the credit for the bomb blasts. During the course of investigation, the petitioners were arrested and are lodged in different Central Jails. While Mohd. Sarvar Aazmi, petitioner No. 1, Shahbaz Hussain alias Shahbaz Ahmed, petitioner No. 2, and Mohd. Salman, petitioner No. 3, are lodged at Central Jail, Jaipur, Mohd. Saif, petitioner No. 4, and Saifur Rehman, petitioner No. 5, are lodged at Central Jail Ahmedabad. The petitioner Nos. 1 to 3 are produced before the trial Court at Jaipur on the trial dates.
2. On 18-4-2011, the Superintendent, Central Jail, Jaipur, had moved an application before the Special Court (Jaipur Bomb Blast Cases), Jaipur, seeking permission to handcuff Mohd. Sarvar Aazmi and Shahbaz Hussain alias Shahbaz Ahmed while producing them before the trial Court. However, by order dated 24-5-2011, the Special Court dismissed the said application. Subsequently, the Additional Police Commissioner, Jaipur, filed another application before the Special Court for handcuffing the petitioners while taking them to and fro from the Jail. By order dated 8-8-2012, the learned Judge allowed the application. Hence, this petition before this Court.
3. Mr. Paker Farooq, the learned counsel for the petitioners, has vehemently contended that the learned Special Judge is prejudiced against the petitioners as they are accused persons in the Jaipur bomb blast case. His bias against the petitioners is evident from the fact that while dismissing the first application by order dated 24-5-2011, he had given indications to the Government to move an application showing the fact that "the petitioners were violent, disorderly and likely to attempt escape". Subsequently, the application has been moved only oh these grounds. Thus, the Presiding Officer and the police are hand in gloves in order to ensure that the petitioners are brought handcuffed to the Court.
4. Secondly, the first application was based on the fact that the petitioners were involved in grievous offences, namely for offences under Sections 121A, 124A, 153A, 302, 307, IPC. Therefore, they are dangerous persons. Thus, they ought to be handcuffed. According to the learned counsel, even the subsequent application has been filed on the same grounds. Therefore, while granting permission, the learned Judge has reviewed his earlier order. Hence, he has exercised a power not vested in him.
5. Thirdly, there is no valid reason for handcuffing the petitioners. The evidence that they had misbehaved with the guards, that they had violated the discipline of the Jail are all cooked-up stories as the police is bent upon handcuffing them while transporting them to the Court. Relying on the case of
6. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has strenuously contended that while passing the order dated 24-5-2011, the learned Judge had merely indicated the grounds on which the State would be justified in handcuffing the petitioners. Since, these grounds did not exist in the application filed by the Superintendent, Central Jail, the learned Judge had dismissed the said application.
7. Secondly, the initial application was moved for handcuffing only two of the petitioners, namely Mohd. Sarvar Aazmi and Shahbaz Hussain alias Shahbaz Ahmed, whereas the present application was moved for handcuffing all the five petitioners relating to the Jaipur bomb blast case. Moreover, the need for safe transportation may change over a period of time. Safety of the under-trial is the concern of the police. Therefore, while initially mere may not be any need for handcuffing two of the petitioners, subsequently, such a need may arise considering diverse factors. Hence, it is not a question of reviewing the previous order, but it is a question of looking at the fresh factors which may arise after the first order was passed.
8. Thirdly, the application moved by the Additional Commissioner of Police is not on the same ground as the earlier one. For, in his application the ACP has pleaded that the petitioners are misbehaving with the escort guards, are violating the jail discipline, and are threatening that they are likely to escape from police custody while being transported to the Court and back. Hence, the learned Judge has passed a new order in the light of the latest developments. Thus, there is no question of reviewing the earlier order.
9. Fourthly, mere is no evidence to show that the allegations of misbehavior by the petitioners, or the evidence that they are trying to break the discipline of the Jail, are cooked-up stories. In fact, the documentary evidence shows that they have misbehaved with the guards, to show that they have been provoking the guards, to show that they are breaking the discipline of the Jail, to show that they are openly asserting that they will escape. Hence, their conduct compelled the police to seek permission of the Court to handcuff them.
10. Fifthly, the petitioners are not ordinary criminals, but are allegedly members of a terrorist group which had taken the credit for carrying out the Jaipur bomb blasts. Since they are members of a terrorist group, a distinct possibility does exist that the group may want to free the petitioners from the custody of the police. Moreover, a grave possibility equally exist that even physical safety of the petitioners might be endangered by those who claim to be either victims, or by those who profess to be against the terrorist groups. Therefore, physical safety of the petitioners is of utmost concern to the police.
11. Sixthly, the application has been filed by the Additional Police Commissioner who is a responsible officer.
12. Lastly, that the police wants to handcuff the petitioners not in order to violate their human rights, but in order to ensure their safety and safe transportation to and fro from the Jail.
13. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor for the State and perused the impugned order.
14. The first contention raised by the learned counsel for the petitioners that the learned Special Judge is biased against the petitioners is highly misplaced. A bare perusal of the order dated 24-5-2011 clearly reveals that the learned Special Judge has merely given a liberty to the State to move an application in case cogent reasons exist for wanting to handcuff the petitioners. Merely because subsequently an application has been filed on cogent grounds, it cannot be inferred that the learned Special Judge was prejudiced against the petitioners. Further if, indeed, the learned Judge were biased against the petitioners, then he would have allowed the first application for their handcuffing. Thus, it cannot be concluded that the police and the learned Judge are hand-in-gloves and want to act against the petitioners. The arguments is merely an emotional appeal. But the Court cannot be swayed by such emotional arguments.
15. A bare perusal of the order dated 24-5-2011 clearly reveals that the first application moved by the Superintendent, Central Jail, Jaipur was based on twin grounds that the petitioners are involved in serious offences falling under Sections 121A, 124A, 153A, 302, 307, IPC and Sections 3, 4, 5, 6 of the Explosive Substances Act, 1908 and Sections 3/ 10, 13, 16(1)(A), 18, 20, 38 of the Prevention of Unlawful Activities Act, 1967, and on the ground that there is likelihood of their absconding. On the other hand, the second application was based on the ground that they are breaking the discipline of the Jail, threatening the escort guards and proclaiming that they are likely to abscond with the help of other members of the terrorist groups. Hence, new grounds have been added to the grounds mentioned in the first application. Since the circumstances have changed, since new cogent reasons have been added, it cannot be said that the learned Judge has reviewed his order dated 24-5-2011. Therefore, the second contention raised by the learned counsel for the petitioners that the learned Judge has invoked the power of review, a power not vested in him, is without any merit.
16. The issue of handcuffing a prisoner is a delicate issue as there is conflict of interest between the right of the prisoner not to be handcuffed and to be brought freely to the Court, and the right of the police administration to ensure his safety and to ensure that no untoward incident occurs. While trying to balance the conflicting interest, repeatedly, the Apex Court has sided in favour of the prisoner. Generally, the view is that a prisoner should not be handcuffed while being brought to the Court. For, it not only causes him physical discomfort, not only adversely affects his reputation, but most importantly, limits his personal liberty and violates his right under Article 21 of the Constitution of India. Seen from the human rights'' angle, the Courts have put fetters on the power of the police to handcuff a prisoner.
17. However, the Courts have not obliterated the power of police to handcuff a prisoner if cogent reasons are given by the police for such handcuffing. While handcuffing a prisoner, a holistic view has to be taken of the situation: this requires that the nature of the offence, the safety of the prisoner, the conduct of the prisoner, the possibility that the prisoner may flee from the police custody and may abscond, the possibility that the police escort may be attacked, and an attempt may be made to free the prisoner, and ultimately, safe custody of the prisoner are factors which need to be kept in mind.
18. In the present case, the petitioners are alleged to be members of a terrorist group, namely Indian Mujahiddin; they are alleged to have caused bomb blasts in Jaipur. It is also an admitted fact that the petitioners were not arrested immediately after the Jaipur bomb blast. In fact, the petitioner No. 1, Mohd. Sarvar Aazmi, was arrested on 21-1-1009, petitioner No. 2, Shahbaz Ahmed, was arrested in November, 2008, petitioner No. 3, Mohd. Salman, was arrested in 2011. Since petitioner No. 4, Mohd. Saif, and petitioner No. 5, Saifur Rehman, are not being sent from Gujarat to stand trial in Jaipur, their date of arrest is not very relevant presently. However, it is pertinent to note that at least petitioner Nos. 1 to 3 were absconding after the bomb blast, and were apprehended only after a great difficulty. The police also claims that they have secret information that the terrorist group may want to free the petitioners by attacking the police escort while they are being escorted from the Jail to the Court or vice versa. According to the police on 9-7-2012, some of the petitioners threatened the guards and told them that they are likely to abscond. According to the petitioners, the police would not be able to stop them. Thus, there is a grave possibility that the petitioners may escape when they are transported by the police.
19. A bare perusal of the order dated 8-8-2012 clearly reveals that it was brought to the notice of the learned Special Judge that on 21-8-2011, some of the petitioners had fought with one Amar Singh, S.I. The incident was recorded in Roznamcha, namely Roznamcha Report No. 98 dated 21-8-2011. Moreover, when the petitioners were brought out from the Central Jail, Jaipur, it was discovered that they were carrying a small book in Urdu language. Although according to the Jail Rules the prisoners are not allowed to carry anything with them, when the guards asked the petitioners about the book, the petitioners insisted that they be permitted to carry the said book. When the permission was denied, they started verbally abusing the guards, and tried to free themselves from the custody of the guards. Thus, there is ample evidence to show the misconduct, the indiscipline committed by the petitioners, to show the grave possibility that the petitioners may break free from the police escort and may abscond. There is also evidence, which obviously, cannot be made public as it relates to the threat held out by the terrorist groups, that they may attempt to free the petitioners who are members of the terrorist group.
20. Much water has flow from the days when this country had to deal with the law and order problem, to the present when this country is faced with the threat of terrorism. Terrorism and terrorists have thrown up new legal issues. While dealing with the transportation of the terrorists, one cannot lose sight of the fact that they are not ordinary prisoners. They are alleged to have committed dastardly acts. In the present case, they show enough courage to proclaim that they can break out of the police escort. They have also fought with the police escort. There is also possibility that police escort may be attacked. Hence, it is not a normal situation where an ordinary prisoner has to be transported from the Jail to the Court, and back again. Since ample evidence does exist, the learned counsel for the petitioner is unjustified in claiming that stories have been fabricated by the police. In the given circumstances, this Court would not be justified in treating the evidence produced by the police as suspect. The Courts have to be alive to the dangerous situation in which the country exists. For the reasons stated above, this Court does not find any illegality or perversity in the impugned order. Therefore, this petition being devoid of merit is, hereby, dismissed. The stay application is also dismissed.
