IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 13TH MAY 2010 / 23RD VAISAKHA 1932 Bail Appl..No. 4442 of 2009 CRIME NO.467 OF 2007 OF KASARAGOD POLICE STATION PETITIONERS/ACCUSED 1 & 2 -------------------------------------------- 1. P.A.MOHAMMED,S/O.ABOOBACKER, AGED 39 YEARS,THASHKANT HOUSE,CHEROOR POST, MAIMARMOOLA,PERUMBALA ROAD,PANALAM, KASARGOD TALUK,KASARGOD DISTRICT. 2. KHADEEJA,S/O.IBRAHIM, KATHIYADUKKA,INDIRA NAGAR, CHENGALA VILLAGE, KASARGOD TALUK AND DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT: COMPLAINANT -------------------------- THE STATION HOUSE OFFICER, KASARGOD POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 7/1/2010, THE COURT ON 13/05/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4442 OF 2009 ------------------------------------------------------ Dated this the 13th day of May, 2010 O R D E R The petitioners, who are accused Nos.1 and 2 in Crime No.467 of 2007 of Kasaragod Police Station, seek anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the accused are under Sections 419, 465, 420 read with Section 34 of the Indian Penal Code and Section 3 (1) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. 3. The Crime was registered on 7-7-2007 by the Sub Inspector of Police, Kasaragod. It would appear that the de facto complainant filed Annexure A2 petition dated 23-3-2007 before the District Superintendent of Police, Kasaragod, which was forwarded to the Sub Inspector of Police on 6-7-2007. It was received by the Sub Inspector of Police on 7-7-2007 and on that day, the Crime was registered. B.A. NO. 4442 OF 2009 :: 2 :: 4. The gist of the allegations made in the petition filed by the de facto complainant is the following: Babu, the father of the de facto complainant owned an extent of 10 cents of land in R.S. No. 278/2C 12 and 13 cents in Sy. No. 278/2C 13 in Pady Village. Babu died on 14-8-2001. Out of the aforesaid properties, portions of properties were sold by the family members of the de facto complainant. An extent of 5 cents of land was outstanding in the ownership of the de facto complainant, as per document No.414 of 2004. A house was constructed by the de facto complainant in the property. It was learnt that the said property was sold by somebody, who impersonated as the father of the de facto complainant, in favour of P.A. Mohammed and Khadeeja (Petitioners in the Bail Application). One K.Mohammed and T.K.Rahman (Accused Nos.3 and 4) are the witnesses in the document so created. 5. In Annexure A2 petition, it is not stated that the de facto complainant belongs to a Scheduled Caste or a Scheduled Tribe. However, in the letter forwarding the petition to the Sub Inspector of Police, it is stated that the de facto complainant (Rugmini) belongs to a Scheduled Caste. B.A. NO. 4442 OF 2009 :: 3 :: 6. The petitioners rely on Annexure A3 complaint dated 5.7.2007 filed by the first petitioner before the Court of the Judicial Magistrate of the First Class, Kasaragod showing C.M.Abdul Khader, Zubaid, Mohammed, T.K.Rahman and one identifiable person as the accused. (Of these persons, Mohammad and T.K.Rahman are accused Nos.3 and 4 in the present case also.) In Annexure A3, it is stated by the first petitioner, inter alia, as follows: Accused No.1, a real estate broker, approached him and offered to sell 23 cents of land in R.S.No.278/2C. The original basic document was also shown to the first petitioner. The second accused stated that the owner of the property, Babu, was indebted to her. Accused Nos.1 and 2 introduced a person to the first petitioner representing that, that person was the owner of the property. The first petitioner visited the property in the presence of accused Nos.1 to 4. On 2.2.2007, a sale deed was executed by accused No.5 in favour of the first petitioner. The entire consideration was paid by the first petitioner. The property was purchased after verifying the encumbrance certificate. In March 2007, when the property was about to be measured, some persons, claiming that they were the legal representatives of the deceased owner of the property, came to the property. They stated that Babu, their predecessor in interest, B.A. NO. 4442 OF 2009 :: 4 :: died about 6 years ago. The first petitioner came to know that accused Nos.1 to 4 are members of big racket dealing in fraudulent land transactions. They conspired together and introduced accused No.5, an identifiable person, as the owner of the property and the sale deed was executed by accused No.5 in favour of the first petitioner. They cheated the first petitioner and forged documents knowingly. The offences alleged in Annexure A3 complaint are under Sections 120-B, 419, 420, 463 and 464 read with Section 34 of the Indian Penal Code. Annexure A3 complaint was forwarded by the learned Magistrate to the police under Section 156 (3) of the Code of Criminal Procedure. Accordingly, Annexure A4 Crime No. 119 of 2007 was registered on 5-7-2007. 7. The learned counsel for the petitioners submitted that there is no allegation in Annexure A2 that the petitioners knew that Babu was dead at the time of executing the sale deed and that the executant of the document was some other person. The counsel also submitted that the petitioners are victims of the offence committed by accused Nos.3 and 4 and the other persons mentioned in Annexure A3 complaint. It is also submitted that no case is made out against the petitioners under Section 3 (1) (v) of B.A. NO. 4442 OF 2009 :: 5 :: the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and therefore Section 18 of the Act is not a bar for entertaining the Bail Application. There is no allegation that the petitioners “wrongfully dispossessed” the de facto complaint from her land. There is also no allegation that the petitioners “interfered” with the enjoyment of the rights over the land belonging to the de facto complainant. The counsel submitted that Section 3(1)(v) of the Act is included in the case only to see that the petitioners are denied bail. 8. The learned counsel for the petitioners cited several decisions in support of the contention that Section 18 of the Act would not be bar to entertain an application under Section 438 of the Code of Criminal Procedure, if, prima facie, no offence under the Act is made out in the FIR. 9. The learned Public Prosecutor submitted that Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is bar to entertain the Bail Application under Section 438 of the Code of Criminal Procedure. 10. Taking into account the facts and circumstances of the B.A. NO. 4442 OF 2009 :: 6 :: case, the allegations made in Annexure A2 petition and A3 complaint, I am of the view that, prima facie, there is substance in the contention put forward by the learned counsel for the petitioners. However, while disposing of this Bail Application, it is not feasible or proper to arrive at any final conclusion on the applicability of Section 3 (1) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the facts of the case. 11. In Shanu V. State of Kerala: 2000 (3) KLT 452, it was held that the Magistrate has jurisdiction to grant bail to a person accused of an offence under clause (i) to (xv) of Section 3 (1) of the Act. In Shanu’s case, the High Court directed the Magistrate to grant bail to the accused. In B.A. No.789 of 2005, Shanu’s case was followed. In Crl.M.C.No.3036 of 2004, this Court directed the Magistrate to grant bail to the accused therein. The decision in Shanu’s case was followed in Crl.M.C. No.3036 of 2004 as well. In Ali Vs. State of Kerala: 2000 (1) KLJ 802, it was held that there is no bar for the Magistrate to grant bail to the accused in cases coming under the Act, 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 the B.A. NO. 4442 OF 2009 :: 7 :: power under Section 437 of the Code of Criminal Procedure can be invoked even if the offence is exclusively triable by a Court of Session. Taking into account the peculiar facts and circumstances of the case, I am of the view that the Bail Application can be disposed of directing the learned Magistrate to grant bail to the petitioners. Accordingly, the Bail Application is disposed of with the following directions: (i) The petitioners shall surrender before the Court of the Judicial Magistrate of the First Class having jurisdiction, within a period of two weeks from today and move for bail; (ii) If the petitioners comply with the above direction, the learned Magistrate shall grant bail to the petitioners on such conditions as may be deemed fit and proper. (K.T.SANKARAN) Judge ahz/