IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH FEBRUARY 2008 / 8TH PHALGUNA 1929 Bail Appl..No. 1039 of 2008(A) ------------------------------ CRIME NO.129 OF MUVATTUPUZHA POLICE STATION .................... : PETITIONER --------------------------- ALIAS K.PAUL, S/O.PAUL, AGED 38,YEARS KOLLAMAVUKUDIYIL, KUNNAKKAL P.O.VALAKOM. BY ADV. SRI.T.RAMPRASAD UNNI RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI. 2. THE SUB INSEPCTOR OF POLICE MUVATTUPUZHA POLICE STATION MUVATTUPUZHA. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.1039 of 2008 ------------------------------------- Dated this the 27th day of February, 2008 ORDER Application for anticipatory bail. Petitioner faces allegations, inter alia, under Section 3(1) (xi) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. All other offences are bailable. The crux of the allegations against the petitioner is that he, the President of the Parent Teacher Association of a school, had allegedly indecently assaulted the defacto complainant, a girl child, aged about 13 years. F.I.R has been registered on the basis of the complaint of the said girl dated 28.01.08. The alleged incident took place on 25.01.08. The father of the girl is alleged to have made a complaint and thereupon the statement of the girl was recorded and the crime was registered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the allegations raised against the petitioner are totally false and unfounded. Even the father of the girl has subsequently sworn to an affidavit declaring that no such incident whatsoever had taken place. In these circumstances, it is prayed that anticipatory bail may be granted to the petitioner. B.A.No.1039 of 2008 2 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor points out that in view of Section 18 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, the petitioner is not entitled to issue of directions under Section 438 Cr.P.C in his favour at all. It is, in these circumstances, prayed that the petitioner may be directed to surrender before the learned Magistrate and seek regular bail. 4. I find merit in the opposition by the learned Public Prosecutor. The allegations raised by the aggrieved girl, which are there in the F.I statement, if accepted, will certainly constitute an offence under Section 3(1)(xi) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. Where allegations do not constitute an offence under Section 3 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act and such section of offence has been erroneously included in the F.I.R, certainly the Court under Section 438 Cr.P.C shall not be fettered by Section 18 of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. But that does not appear to be the case in the facts of the instant case. 5. It is for the petitioner to surrender before the learned Magistrate and seek regular bail now. This Court has time and B.A.No.1039 of 2008 3 again reiterated that the mere fact that an offence is triable exclusively by a court of Session will not divest and absolve the Magistrate of his jurisdiction and responsibility to consider an application for regular bail under Section 437 Cr.P.C. The position has been made clear and repeated in Ali v. State of Kerala [2000(2) KLT 280], Shanu v. State of Kerala [200(3) KLT 452], Krishnakumar v. State of Kerala [2005(1) KLD (Cri.42] and P.P.Kader v. State of Kerala [2005(1) KLD (Cri.250]. 6. I am, in these circumstances, satisfied that this petition can be dismissed. This bail application is, in these circumstances, dismissed, but with the observation that if the petitioner surrenders before the learned Magistrate and seeks regular bail after giving sufficient prior notice to the prosecutor in charge of the case, the learned Magistrate must consider the application for regular bail on merits, in accordance with law and expeditiously - on the date of surrender itself. 7. The learned counsel for the petitioner submits that the father of the defacto complainant has sworn to an affidavit before the Notary Public and has also issued a public statement to indicate that no such incident had taken place and that he is not interested in proceeding with the allegations. These B.A.No.1039 of 2008 4 circumstances, even if true, cannot alter the conclusion that I have reached. The petitioner shall, of course, be able to place all such relevant materials before the learned Magistrate when he applies for regular bail. (R.BASANT, JUDGE) rtr/-