IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Bail Appl..No. 9859 of 2011 CRIME NO.,698 OF 2011 OF NILESHWAR POLICE STATION, KASARAGOD. PETITIONERS: ACCUSED NOS.1 TO 5: -------------------- 1. K.SATHEESAN, S/O.RAGHAVAN, AGED 34 YEARS RESIDING AT KARIMBIL HOUSE, KOYITHATTA, KARINDALAM VILLAGE AND POST, HOSDURG TALUK KASARAGOD DISTRICT. 2. BALACHANDRAN K, AGED 51 YEARS RESIDING AT KARIMBIL HOUSE KOYITHATTA,KARINDALAM VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT. 3. CHANDRA KUMARI,AGED 38 YEARS W/O.K.BALACHANDRAN, RESIDING AT KARIMBIL HOUSE KOYITHATTA,KARINDALAM VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT. 4. JAYASREE, AGED 40 YEARS W/O K.BALAN, KOYITHATTA HOUSE, KARINDALAM VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT. 5. VANAJA.K, AGED 39 YEARS D/O.RAGHAVAN, KARIMBIL HOUSE KARIDALAM VILLAGE AND POST, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT: COMPLAINANT: --------------- THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, NILESHWAR POLIC STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 9859 OF 2011 ------------------------------------------------------ Dated this the 21st day of December, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos.1 to 5 in Crime No.698 of 2011 of Nileshwar Police Station, Kasaragod District. 2. The offences alleged against the accused are under Sections 143, 147, 148, 323, 324, 354 and 506(ii) read with Section 149 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is the following: On 18.11.2011, the defacto complainant and her sister, who belong to a scheduled caste, were taken to the property of one Radhika for rubber tapping. At that time, the accused forcibly entered into the property and attacked the defacto complainant and her sister. It is stated that there is a dispute between Radhika and her sister Jayasree BAIL APPL. NO. 9859 OF 2011 :: 2 :: (accused No.4). It is further stated that the defacto complainant and her sister were referred to as the children of a member of a scheduled caste by referring to their caste name. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. I have also perused the case diary. 5. It is submitted by the learned counsel for the petitioners that since offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is alleged, the learned Magistrate may not grant bail to the petitioners, if they surrender before Court, on the ground that the offence is exclusively triable by a Court of Sessions. It is submitted by the learned counsel for the petitioners that the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is included only to see that the petitioners are detained in civil prison. It is submitted that the case was initiated at the instance of Radhika, the sister of accused No.4, on account of the dispute regarding the property between Radhika and her sister. 6. Taking into account the facts and circumstances of the BAIL APPL. NO. 9859 OF 2011 :: 3 :: case, I am of the view that it is necessary to protect the interests of the petitioners. 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 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. 7. After having considered the facts and circumstances of the case, I am of the view that this Bail Application can be disposed of by BAIL APPL. NO. 9859 OF 2011 :: 4 :: directing the petitioners to appear before the Court having jurisdiction within three weeks and move for regular bail. When such an application is filed, the Court having jurisdiction shall grant bail to the petitioners on such conditions as may be deemed fit and proper. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/