IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 Bail Appl..No. 5266 of 2011 CRIME NO.143/2011 OF THIRUNELLY POLICE STATION, WAYANAD DISTRICT. PETITIONER: ACCUSED: -------------------- JOHNY, AGED 46 YEARS S/O.PAILY, NJARAKKULAM (H) THRISSILERY PO, THIRUNELLY, WAYANADU. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT: COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBILC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5266 OF 2011 E ------------------------------------------------------ Dated this the 15th day of July, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.143 of 2011 of Thirunelly Police Station, Wynad District. 2. The offences alleged against the petitioner are under Sections 376 and 506(i) of the Indian Penal Code and Section 3(1) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The prosecution case is the following: The de facto complainant was working on daily wages in the property of the accused. The accused made a promise to the de facto complainant to marry her and they had sexual intercourse. The de facto complainant became pregnant and delivered of a child. The allegation is that making the de facto complainant believe that the B.A. NO. 5266 OF 2011 :: 2 :: accused would marry her, she was sexually abused by the accused twenty two years' ago. 4. Learned counsel for the petitioner submitted that if the allegation made by the de facto complainant is accepted, the offence would not be covered by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, since the Act came into force only in 1989. A person cannot be punished under the Act for an offence allegedly committed before coming into force of the Act. 5. The offences alleged against the petitioner include an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In Shanu v. State of Kerala (2000 (3) KLT 452), this Court held that the Magistrate has got power to grant bail to the accused even in cases under clauses (i) to (xv) of Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In that case, the learned Magistrate was directed to grant bail to the accused. The decision in Shanu's case was B.A. NO. 5266 OF 2011 :: 3 :: followed by another learned single Judge in 2005 (1) KLD 250 (B.A.No.789 of 2005) and in 2005 KHC 2058 (Krishna Kumar v. State of Kerala). In Ali v. State of Kerala (2000 (2) KLT 280), it was held that there is no bar for the Magistrate for granting bail in such cases on the basis of the general principles enunciated in Section 437 of the Code of Criminal Procedure. In Sukumari v. State of Kerala (2001 (1) KLT 22), it was held that Section 437 of the Code of Criminal Procedure does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non- bailable offence or in respect of offences exclusively triable by a Court of Sessions. 6. After having considered the facts and circumstances of the case, I am of the view that this Bail Application can be disposed of by directing the petitioner to appear before the Judicial Magistrate of the First Class II, Mananthavady and move for regular bail. When such an application is filed, the learned Magistrate shall grant bail to the petitioner on such conditions as may be deemed fit and proper. B.A. NO. 5266 OF 2011 :: 4 :: 7. The petitioner undertakes to co-operate with the investigating officer for the purpose of conducting potency test and DNA test. This shall be a condition for granting bail. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/