IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 Bail Appl..No. 7920 of 2011 CRIME NO.581 OF 2011 OF NILAMBUR POLICE STATION, MALAPPURAM. PETITIONERS: ACCUSED: -------------------- 1. RAMACHANDRAN, S/O.KRISHNAN KALLEMPADATH HOUSE, MANALODY, NILAMBUR, MALAPPURAM DISTRICT. 2. DEEPAK K, S/O.RAMACHANDRAN KALLEMPADATH HOUSE, MANALODY, NILAMBUR, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE: --------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE NILAMBUR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM KOCHI -31. PUBLIC PROSECUTOR SRI.R.RENJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7920 OF 2011 B ------------------------------------------------------ Dated this the 14th 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 the accused persons in Crime No.581 of 2011 of Nilambur Police Station, Malappuram District. 2. The offences alleged against the accused are under Sections 323, 324, 354, 447, 427, 506(i) read with Section 34 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The defacto complainant filed a complaint before the Magistrate's Court, which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure. Accordingly, the crime was registered. 4. The allegation in the complaint is that on 2.5.2011 at 8.30 A.M., the accused persons trespassed upon the property of the paternal uncle of the defacto complainant and destroyed the barbed B.A. NO.7920 OF 2011 :: 2 :: wire fencing and attempted to alter the nature of the property. It is stated in the complaint that the accused requested to provide a new road through the property of the paternal uncle of the defacto complainant, which was refused by him. Due to that enmity, on 2.5.2011, the accused committed the mischief. It is also alleged that the defacto complainant was attacked by the accused. The further allegation is that the accused called the defacto complainant and his family members by their caste name. 5. The learned counsel for the petitioners submitted that O.S.No.212 of 2011 (Annexure A) was filed by the second petitioner before the Court of the Munsiff of Manjeri against the defacto complainant, his paternal uncle and others for an injunction restraining the defendants from obstructing the pathway and for a mandatory injunction to restore the pathway to its original condition. It is submitted by the counsel for the petitioners that the suit was filed on 19.7.2011 and a month thereafter, the complaint was filed before the Magistrate's Court by the defacto complainant making false allegations. The counsel submitted that if the petitioners surrendered before the Magistrate's Court, they would be remanded to judicial custody, since the offence under the Scheduled Castes B.A. NO.7920 OF 2011 :: 3 :: and Scheduled Tribes (Prevention of Atrocities) Act is alleged. It is submitted that the only intention of the defacto complainant is to see that the petitioners are detained in jail at least for a few days and thus to pressurize them to abandon their claim in the suit. 6. Heard the learned counsel for the petitioners and the learned Public Prosecutor. I have also perused the case diary. 7. Taking into account the peculiar facts and circumstances of the case, I am of the view that it is necessary to protect the interests of the petitioners. 8. 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 B.A. NO.7920 OF 2011 :: 4 :: 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 directing the petitioners to appear before the Judicial Magistrate of the First Class, having jurisdiction within two weeks and move for regular bail. When such an application is filed, the learned Magistrate 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/