IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 Bail Appl..No. 4257 of 2008() ----------------------------- CRIME NO. 4 OF 2007 OF AGALI POLICE STATION PETITIONER/ACCUSED NO.1 ------------------------------- ABDUL KHADER, S/O.POLLAKUNNAN HAMSAKUTTY HAJI, NELLIPUZHAKKAL, ARAKURSSI AMSOM AND DESOM OF MANNARKAD TALUK. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, AGALI POLICE STATION. 2. THE DEPUTY SUPERINTENDENT OF POLICE, SPECIAL MOBILE SQUAD, AGALI SUB DIVISION, AGALI. (RESPONDENTS 1 & 2 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY PUBLIC PROSECUTOR SRI. P. RAVINDRA BABU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Bail Application No. 4257 of 2008 * * * * * * * * * * * * * * * * * * Dated this the 23rd day of July 2008 ORDER Petitioner who is the first accused in Crime No. 4 of 2007 of Agali Police Station registered for offences punishable under Sections 395, 427, 342 and 450 of I.P.C. and under Sec. 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, seeks anticipatory bail. 2. The case of the prosecution is that the petitioner herein and 50 others at the midnight of 10-1-2007 illegally demolished the building situated in the property in question after evicting Venkitaswamy the de facto complainant and his uncle's (Selvaraj) workers from the building by using a JCB and committed theft of cattle and other movables worth Rs. 1.5 lakhs. 3. The petitioner along with accused Nos. 2 and 5 had approached this Court with an application for anticipatory bail filed as B.A. No. 318 of 2007 and this Court without going into the merits of the case observed that the remedy of the petitioner was to surrender before the Magistrate concerned and seek regular bail and directed the Magistrate to consider their application for regular bail preferably on the same date on which the same was filed, in case the petitioners surrenderered before the Magistrate and filed applications for regular bail within two weeks thereof. Eventhough aggrieved by the said order the petitioners approached the Hon'ble Supreme Court of India by filing Special Leave to Appeal (Cri) as 833 of 2007, the order of Bail Application No. 4257 of 2008 -:2:- this Court was affirmed and they were given time to surrender before the Magistrate within two weeks thereof. It is thereafter that the petitioner herein has filed the present application. 4. It is true that the earlier application for anticipatory bail was not considered by this Court on merits. But that is hardly a reason why this Court should consider the case of the petitioner on merits in a second application for anticipatory bail. But at the same time, it shall be open to the petitioners to convince the Magistrate that even according to the de facto complainant the petitioner and the de facto complainant are co-owners and, therefore, offences punishable under Secs. 395, 450 or 427 I.P.C. cannot be committed. It is also open to the petitioner to convince the Magistrate that since the de facto complainant is not a person belonging to the Scheduled Caste or Scheduled Tribe, the offence punishable under Sec. 3 (2) (v) of the SC/ST (Prevention of Atrocities) Act, 1989 is also not attracted. I am sure that the Magistrate , if moved, shall consider the contentions of the petitioner on the merits before deciding as to whether the petitioner is to be remanded to the judicial custody or not. With the above observations, this application is disposed of. V. RAMKUMAR, (JUDGE) ani. Bail Application No. 4257 of 2008 -:3:-