IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 Bail Appl..No. 6801 of 2009 CRIME NO.462 OF 2009 OF PERAMBRA POLICE STATION PETITIONERS: ACCUSED: ---------------------------- 1. GOVINDAN, S/O.SANKARAN NAIR, THAIVACHA PARAMBIL (HOUSE), ERAVATTOOR AMSOM, KIZHINHANIAM DESOM, PERAMBRA P.O., KOZHIKODE DISTRICT. 2. MANOJ, S/O.KUNHIKANNAN, NELLUTHIL MEETHAL (HOUSE), ERAVATTOOR AMSOM, KIZHINHANIAM DESOM, PERAMBRA P.O., KOZHIKODE DISTRICT. 3. VIJAYAN, S/O.KAMARAN, THAIVACHA PARAMBIL (HOUSE), ERAVATTOOR AMSOM, KIZHINHANIAM DESOM, PERAMBRA P.O., KOZHIKODE DISTRICT. 4. SUNIL, S/O.KUNHIKAMARAN, THAIVACHA PARAMBIL (HOUSE), ERAVATTOOR AMSOM, KIZHINHANIAM DESOM, PERAMBRA P.O., KOZHIKODE DISTRICT. BY ADV. SRI.SANTHARAM.P RESPONDENT: STATE: --------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6801 OF 2009 ------------------------------------------------------ Dated this the 26th day of November, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are the accused persons in Crime No.462 of 2009 of Perambra Police Station. 2. The offences alleged against the petitioners are under Sections 448, 341, 323, 324 and 294(b) read with Section 34 of the Indian Penal Code and Section 3 (i), (x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The date of occurrence was on 13.10.2009. The accused persons are the neighbours of the de facto complainant. The de facto complainant belongs to a scheduled tribe. The allegation is that she was called by her caste name. 4. Learned counsel for the petitioners submitted that on the same date, the goondas engaged by the de facto complainant in the present case attacked the wife of the first petitioner herein after B.A. NO. 6801 OF 2009 :: 2 :: entering into the house. She was injured and she was hospitalised. Crime No.463 of 2009 was registered against them for offences under Sections 143, 147, 148, 294(b), 452, 427, 323 and 324 read with Section 149 of the Indian Penal Code are alleged. In Crime No.463 of 2009, the brother of the de facto complainant in the present case is one of the accused persons. 5. It is submitted by the learned counsel for the petitioners that the allegation of calling the de facto complainant by her caste name is made with an intention to see that the petitioners do not get bail or anticipatory bail. 6. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that an application under Section 438 of the Code of Criminal Procedure would not be maintainable in the case of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 7. In Shanu v. State of Kerala (2000 (3) KLT 452), it was held that the Magistrate has power to grant bail to the accused in a case under clauses (i) to (xv) of Section 3(1) of the Scheduled B.A. NO. 6801 OF 2009 :: 3 :: Castes and Scheduled Tribes (Prevention of Atrocities) Act. In that case, the High Court directed the Magistrate to grant bail to the accused. The decision in Shanu's case was followed in B.A.No.789 of 2005 and in Crl.M.C.No.3036 of 2004 (Krishna Kumar v. State of Kerala). In Ali v. State of Kerala (2000 (2) KLT 280), this Court took the view that in cases of similar nature, there is no bar to the Magistrate to exercise the power under Section 437 of the Code of Criminal Procedure and to grant bail. 8. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where the offence is triable exclusively by the Court of Sessions. 9. In the peculiar facts and circumstances of the case, I am of the view that a direction as given in Shanu's case should be given in the present case as well. Accordingly, the Bail Application is disposed of in the following manner: i) The petitioners shall appear before the Judicial Magistrate of the First Class I, Perambra, within a period of ten days from today and apply for bail. B.A. NO. 6801 OF 2009 :: 4 :: ii) If the petitioners comply with the above direction, the learned Magistrate shall grant bail to them on such conditions as may be deemed fit and proper in the facts and circumstances of the case. (K.T.SANKARAN) Judge ahz/