C.R.DASH, J. MISC.CASE NO.1126 OF 2011 (Arising out of BLAPL NO.15124 OF 2011) (Decided on 9.9.2011) SUMAN PATRA ……… Petitioner. .Vrs. STATE OF ORISSA ………Opp.Party. CRIMINAL PROCEDURE CODE, 1973 (ACT NO. 2 OF 1974) – S.439. For Petitioner - M/s. Maitrijit Mohanty For Opp.Party - M/s. Saswata Patnaik BLAPL No. 15124 of 2011 Mr. Saswata Patnaik and associates enter appearance for the informant. Heard learned counsel for the parties. The petitioner is shown to be a boy aged about 19 years. He is implicated in offence punishable under sections 509/354/323/ 307/379/506/34 I.P.C. Considered the materials including the injury report in respect of the victim. Learned counsel for the petitioner submits that there is no record of past criminal antecedent against the petitioner and in view of such fact there is possibility of reform in him. The petitioner is stated to be in custody sine about two months. Regard being had to the facts and submissions, factum of permanent residence of the petitioner, his tender age, possibility of reform in him and substantial progress in investigation, it is directed that the petitioner shall be released on bail by executing bond of Rs.20,000/- (Twenty thousand) with two sureties each solvent for the like amount to the satisfaction of learned S.D.J.M.(S), Cuttack in G.R. Case No.835 of 2011, subject to such conditions as deemed just and proper by the learned Court below including the following conditions:-. i) The petitioner shall appear before the concerned I.O. twice in a week on the day and time fixed by the said I.O. till conclusion of trial of this case; and ii) Every Sunday at 4.00 P.M. the petitioner shall appear before the I.O., who shall make arrangement to take the petitioner to Cuttack Chandi temple, where the petitioner shall do the “Kara Seva” by cleaning the shoes of the devotees for two hours. He shall continue to do the same for 12 weeks. The Executive Officer of Cuttack Chandi Temple shall make necessary arrangement in the matter. The Bail Application is disposed of. Misc, Case No.1126 of 2011 Heard learned counsels for the parties. 2. The petitioner has filed this Misc. Case for modification of condition no.(ii) of the order dated 09.09.2011 passed in the Bail Application. 3. Petitioner Suman Patra @ Tiki and his father Akhaya Patra @ Banka having appeared in the Court in person on 22.09.2011 have filed their respective affidavits. 4. The petitioner himself, besides the facts averred in the affidavit, submitted before the Court that he is repentant for the alleged act without, however, admitting the same and he is ready to correct himself by doing some voluntary service to the society. The father of the petitioner also submitted in person before the Court that he shall take proper care of the petitioner to groom him up to be a better citizen. 5. It is submitted by Mr. K.P. Mishra, learned counsel for the petitioner that condition no.(ii) may amount to punishment under the law and it may also stigmatize the petitioner. It is further emphatically submitted that when the principles of Criminal Jurisprudence is to the effect that a person is presumed to be innocent till his guilt is proved, condition no. (ii) imposed for release of the petitioner on bail sounds like stamping the petitioner guilty before his trial. Lastly, it is submitted that the petitioner is repentant for his alleged mistakes / misdemeanor, and asking him to undergo the ordeal of “KAR SEVA’” may be counter-productive especially when the petitioner has not yet crossed his teens and he is prone to imagine things beyond proportion. Elaborating his submissions in clear terms, Mr. Mishra, learned counsel for the petitioner submits that the petitioner and his entire family are under stress for the apprehended humiliation, and the petitioner under such stress may also take some untoward step to even commit suicide. 6. Learned Addl. Govt. Advocate on the other hand submits that condition no.(ii) imposed as a condition of bail is just and proper in the facts and circumstances of the case. He submits that the petitioner is alleged to have committed offence under Sections 509/354/323/307/379/506/34, I.P.C. along with his friends. The sequence of events constituting the entire occurrence speaks loudly about uncontrolled arrogance of the petitioner and his friends, and such arrogance could have been subdued only by the impugned condition imposed by this Court. He emphatically submits that the impugned condition no.(ii) imposed by this Court is just and proper in the peculiarity of the facts and circumstances of the case and it needs no modification. 7. Before adverting to address the contentions raised by learned counsels for the parties, I feel persuaded to make Mr. Mishra, learned counsel for the petitioner, remember that before imposing the impugned condition, this Court in clear term had asked Mr. Mishra about the condition proposed to be imposed just to imbibe corrections in the petitioner by arousing his sense of humility. 2 8. We, as a society, love status quo. We usually refuse to learn from others’ mistakes till we ourselves commit the same mistake. A person ignores the trauma of a victim of molestation or rape just as a passing news and he only becomes vocal when such misfortune befalls on him. General apathy to everything around us is our character. Coming to the family, the present generations with the advent of technologies are more exposed to the society than we were in the past. They, no doubt, have a better understanding than us, but they also inherit this general apathy as a character. More the exposure, more become their attraction to deviants than discipline. Education, grooming, discipline and technology have shaped some of the youths to be more aware and more concerned compared to what we were in the past. But that is only a tip of the iceberg. The bond of family for some reasons (which is a matter of study by sociologists and psychologists) is found to be loosened. Our youths are over-reactive and the parents are forced to tread cautiously while dealing with them. An affectionate slapping or twisting of ears, which may bring positive changes in errant child or youth, have been designedly spared by the parents and elders of the family for the sheer fear that the child / youth may over-react. We, the parents try to cover up the mistakes or misdeeds of our children instead of correcting them, blissfully forgetting or ignoring the age old adage that a cup of water at the right time could extinguish the largest fire in the world. In such situation the Court is left with no option but to step in to make such a child / youth realize the pain of humiliation just to arouse his sense so that probation or punishment, whatever be the product of the verdict, shall be effective and the youth shall loathe before even thinking of repeating such offence. With such view in my mind, condition no. (ii) was imposed while releasing the petitioner on bail. 9. Father of the petitioner, on appearing before this Court, submitted that the petitioner registered realization on his face on looking at the impugned condition and has started analyzing the same in his mind. I also marked the spark of realization in the innocent eyes of the petitioner. If such realization is a feigned one and the submissions advanced by the petitioner, his father and his counsel are conduct to cover up the mistakes / misdemeanor of the petitioner, both petitioner and his father shall have to pay the price for that in the long run and at that time there shall be no scope for the father or the petitioner to repent any more, as the petitioner shall have no mind to register realization in order to experience repentance after he has totally slipped. But the petitioner having donated blood to the Blood Bank voluntarily as a mark of social service on 23.09.2011 and the social service rendered, even if induced by apprehension of humiliation being truly a noble deed, such a conduct of the petitioner makes me believe his bona fides without suspecting his intention or his father’s intention. 10. In course of argument, I asked learned counsel for the petitioner to persuade the petitioner to keep the light of realization burning in him till the verdict day after trial so that he can accept with a positive mind whatever happens to him, be it punishment, probation for his reform, or an acquittal. I also suggested some methods to keep the petitioner engaged in social activities and some methods learned counsel for the petitioner also suggested. I shall take those matters into consideration after addressing the contentions raised by learned counsels for the parties. 11. It is worthwhile to analyze the impugned condition now. “KAR SEVA” is a recognized ‘community service’ among Punjabi community, Hindu community in Punjab 3 and some parts of North India. I am told that even billionaires vie for an opportunity to do “KAR SEVA” in Golden Temple of Punjab and other Gurudwaras. Every aspect starting from manning the shoes-stand to cleaning up the dishes are done through “KAR SEVA”. It is considered to be an honourable service. Such a thing is not prevalent in Orissa. But our culture teaches us to imbibe good things from other cultures. If a thing is good and honourable in one place or community, it cannot be considered to be bad or dis- honourable in another place or community of the same country, especially, if we look behind to perceive the psychology and attitude of the persons doing the “KAR SEVA” in other community and places with a strict secular attitude. With such things in mind, the “KAR SEVA” at the shoes-stand of Cuttack Chandi Temple was imposed as a condition to take care of the petitioner as a social aberrant. My focus while imposing the condition was on the petitioner as an individual and my goal was to salvage him for the society. While imposing the condition, I took cognizance of the definition of ‘punishment’ in the Indian Penal Code, under which the petitioner is charged, the humanitarian spirit of law and the objective of redemption of the petitioner as a crime doer with a view to restore his whole personality. An argument may be advanced that voluntariness cannot be aroused by sanction of law. But my answer is when the family fails to arouse the best senses of an individual and provide condition for that individual to realize his best self, when the society prefers to be reactive to a crime doer, who is only indulged in a social aberration or prefers to ignore him or prefers to be apathetic towards him, the Court as a human institution is left with no option but to take step to arouse the senses of a wrong doer in whatever way, which, of course, is not inconsistent with any law. It is the duty of the Court in such a situation to compel the accused to put his right step forward. If he opts to put the right step (though under compulsion) forward, it becomes the duty of the family and the society to help him walk the right way. He should be taught then through care or affection of the family and elders, while the rod is still hot, to learn to honour the rights of others, if he wants to enjoy the rights guaranteed to him. 12. Punishment is prescribed in Section 53 of the Indian Penal Code under Chapter-3. The impugned condition imposed may be viewed mistakenly as a punishment, if considered in isolation without reading Section 53 of the I.P.C. along with it. Viewed in the light of Bentham’s Principles of “Pain and Pleasure”, the impugned condition may partake the character of pain if viewed negatively that too in isolation without taking into consideration the high-handed acts of the petitioner. But, viewed positively from a societal perspective of “KAR SEVA” as prevalent in other parts of our country and from a punitive therapeutic angle, the impugned condition is only a step to arouse ‘introspection’ and ‘understanding’ in the petitioner to experience the finer human values in life. Understanding of anything by us depends on how we take it or how we look at it. It depends on our mind set and attitude. Pain and pleasure have their relativity. Taken positively, a pain may result in pleasure and, taken negatively, a pleasure may also result in pain. Taken positively, humiliation may end up in shaping an individual to experience the finer human values like humility, empathy, sympathy, etc. Taken negatively, humiliation may end up in arousing the sense of avenge, hatred and withdrawal, etc. in the same individual. Acceptance of anything with proper perspective / proper implication or proper attitude depends how we are groomed in our family and the society to take up things coming in our life. If we ponder deeply, we may end up in the finding that we, as a society, are passing through a phase of “faith crisis”. We look at everything with suspicion and train our mind to accept everything with initial negativity. Any of us, if asked to find a single fault in ourselves, we may fail to find out even one; 4 but, if we are asked to find out a single virtue in another, we may end up in finding out twenty faults in him/her. This is because we have forgotten totally to employ ‘introspection’ and ‘understanding’ as tools for knowing ourselves and others. We are certainly failing to understand others as they are. ‘Introspection’ and ‘Understanding’ are the tools given to the world by our culture for realization of one’s best-self. Those tools need to be employed and perfected for looking at things and people coming in our way everyday. But, unfortunately our family systems as well as the society have failed to a great extent in shaping up our personality and mind to accept things as they are. The impugned condition is only a step to provoke realization in the petitioner and to keep him in the track of reformation. It is never a punishment. It is the duty of the family and the society now to come forward to arouse the positive sense in the petitioner without misleading him in any manner. Just as any other decision, happiness also is a decision and it now depends on the petitioner to take or not to take that decision. When the impugned condition imposed is not a punishment in Indian Penal Code or any other Statute, it cannot therefore be held to be a punishment in the present case. 13. “An accused is innocent till his guilt is proved” is a salutary principle of criminal jurisprudence. The principle is to be borne in mind by the Judges trying cases so that they may not proceed on a wrong premise and have to proceed on the fixed premise that “the accused is innocent till his guilt is proved”. The principle stares at the face of the Judge throughout the process of trial and the appeal or revision arising out of such trial. That is why the principle addresses the evidentiary aspect like ‘burden’, ‘proof’ and of course the position of the accused throughout the trial, who, even has the right to keep mum throughout the trial. The principle, however, does not arm the accused to preach his innocence before the society. So far as bail proceeding is concerned, the principle has little application beyond the mind of the Judge, who, as an impartial auditor, has to find out a prima facie case before granting or refusing bail. Had the principle got an application beyond the trial to arm the accused with substantive innocence as claimed, there would not have been any provision for bail, because an account could not have been taken to custody till his guilt is proved. 14. Coming to the question of power of the Court to impose conditions while releasing the accused on bail, the subject is no more res integra. Hon’ble Supreme Court of India in the case of Gudikanti Narasimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 S.C. 429, has ruled thus :- “12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimized. Restorative community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned ‘free enterprise’, should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.” (emphasis is given by me) 5 The Hon’ble Supreme Court has further observed thus :- “……The corrective instinct of the law plays upon release orders by strapping on to them protective and curative conditions.”… 15. In view of the aforesaid observation of the Hon’ble Supreme Court, there remains no doubt that in exercise of its power under Section 439 read with Section 482 of the Code of Criminal Procedure, the Court can impose any condition which is protective and curative. “Community Service” as a condition, which was imposed in this case, has also been recognized by Hon’ble Supreme Court way back in 1978. In the premises as aforesaid, I do not find any merit in the contentions of learned counsel for the petitioner on law and on power of this Court to impose the impugned condition. 16. Coming to the last contention, I feel constrained to say with emphasis that the petitioner cannot be allowed to barter his stress, which may lead him to commit suicide, for the relief he has claimed. If he had the slightest apprehension that the condition imposed has stress for him and his family members in store, he should not have availed the benefit of bail. He could have filed petition for modification of the condition while still in custody or he could have approached Hon’ble the Supreme Court against the order. But, having executed the Bond on acceptance of the condition, he cannot say that the condition pricks and he is now under stress. He cannot blow hot and cold at the same time. The ground, if insisted, may land the petitioner again in custody for the lone reason of his safety. Learned counsel for the petitioner, in course of hearing, however abandoned the plea and harped on voluntary correction of the petitioner. 17. Coming to the contention on the point of steps by the petitioner to correct himself, it is submitted by learned counsel for the petitioner that the petitioner had donated blood in the Blood Bank of S.C.B. Medical College & Hospital, Cuttack on 23.09.2011 purely out of his own volition and that speaks of his proceeding in the right way to correct himself. 18. The action of the petitioner is a stray incident, which he might have designed to play confidence tricks on the Court or the community. He may forget the good work he has done after getting the relief claimed, and a stray incident cannot be held to be sufficient to bring correction in the petitioner as desired by the Court in imposing the impugned condition no.(ii). My discussion supra shows that the condition impugned is not against law or it has not been imposed as a punitive measure. Still the petitioner having not yet crossed his teens and he being prone to imagine things out of proportions for the Media glare on the issue, the concept of “KAR SEVA” in the shoes- stand of a shrine having not yet been recognized as an honourable “community service” in the culture of our State and the shoes-stands before the shrines, as I am told, being managed on contract basis for profit only, I feel persuaded to give a rethinking into the matter. Accordingly, impugned condition no.(ii) is substituted by the following conditions :- (ii) The petitioner shall not threaten, induce, coerce or intimidate the informant or any witness of this case in any manner whatsoever; 6 (ii)(a) He shall not involve himself in similar or any other offence during currency of this order; and (ii)(b) The petitioner shall do any two of the followings :- (i) He shall save a part of his pocket money each day and shall spend his month’s savings by providing chocolates, pencils, clothings, or study materials etc. to the children of any orphanage of his choice situated in Cuttack town or Cuttack Sadar area. (ii) He having already undertaken the service of donating blood in the Blood Bank, he shall associate himself with any voluntary organisation or group of Cuttack town engaged in collection of blood to augment the needs of patients suffering from various diseases. (iii) He shall report before the Executive Officer of Cuttack Chandi Temple or any other temple of his choice in Cuttack town to do “KAR SEVA”, like sweeping the floor of the temple, preparing garlands to be offered to the deity, collection of flowers, preparation of sandal pastes, removing the used flowers offered to the deity to its appointed place, serving food in the community feast or any welfare work or ‘Seva’ of the temple, as entrusted to him by the concerned authorities. This “KAR SEVA” shall be confined to once in a week. 19. Besides abiding the aforesaid conditions, the petitioner may take steps with the help of his father to renew his study in any college or in the IGNOU. 20. Condition nos.(ii)(b)(i) and (ii)(b)(ii), if opted by the petitioner, shall be effective from 1st day of October, 2011. Condition No.(ii)(b)(iii), if opted by the petitioner, shall be effective from Sunday or any other day of the choice of the petitioner, from the first week of October, 2011. The duration of conditions in (ii)(b) supra shall be for one year or till conclusion of the trial, whichever is earlier. 21. The Investigating Officer of the case is directed to monitor the aforesaid conditions imposed accordingly during appearance of the petitioner before him in compliance of condition no.(i) of the bail order. 22. Before parting with the order, I feel persuaded to request learned Advocate General to solicit views from the D.G. of Police, Commissioner of Police, Chief Secretary, N.G.Os. engaged in the field, Editors of widely published Daily News Papers and other groups on the points of availability of different Community Services where young offenders may be engaged for their correction in appropriate case. A compilation containing suggestions and views be filed within four months, which may be used as reference in other cases. The Misc. Case is accordingly disposed of. A copy of this order be supplied to learned Advocate General, Orissa. Application disposed of. 7