IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 Bail Appl..No. 7282 of 2009 CRIME NO.843 OF 2009 OF OLLOOR POLICE STATION, THRISSUR DISTRICT. PETITIONERS/ACCUSED NOS.1 AND 2: --------------------------------------- 1. REJI GEORGE, S/O.GEORGE, AGED 38 YEARS, THENGUNILKUNNATHIL P.O., MANNAMANGALAM. 2. SAJI GEORGE, S/O. GEORGE, AGED 38 YEARS, THENGUNILKUNNATHIL P.O., MANNAMANGALAM. BY ADV. SRI.D.ANIL KUMAR RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 7282 OF 2009 ------------------------------------------------------ Dated this the 20th day of May, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.843 of 2009 of Olloor Police Station, Thrissur District. 2. The offences alleged against the petitioners are under Sections 143, 147, 452, 294(b), 506(i), 341, 323 and 353 read with Section 149 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. It is stated that the first petitioner is a member of the local grama panchayat. It is stated that two persons belonging to economically weaker section were constructing houses after availing of the grant given by the Government. For the construction purpose, they removed earth from the nearby land. There arose a dispute between them and the forest officials. The first petitioner interfered B.A. NO.7282 OF 2009 :: 2 :: in the matter in his capacity as the member of the panchayat. He stated that he contacted the forest officials to find out the nature of the dispute. It is stated that, according to the forest officials, the first petitioner had no role to play in the matter. According to the petitioners, on account of political considerations, a false case was foisted against the petitioners incorporating offences which are non- bailable. 4. The allegation against the accused is that on 27.11.2009 the accused persons went to the Forest Range Office and abused the de facto complainant, caught hold of the collar of his uniform and uttered obscene words. He was also abused calling him by his caste name. The de facto complainant belongs to a Scheduled Caste. 5. When the Bail Application came up for hearing on 31.3.2010, the following order was passed: “After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear B.A. NO.7282 OF 2009 :: 3 :: before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 AM on 4.4.2010 and 5.4.2010. The petitioners shall produce a copy of the order before the investigating officer. Post on 8.4.2010. The undertaking not to arrest the petitioners in connection with Crime No.843 of 2009 of Olloor Police Station will continue to be in force till then.” 6. It is submitted by the learned counsel for the petitioners as well as the learned Public Prosecutor that the direction in the order dated 31.3.2010 has been complied with by the petitioners. 7. The learned counsel for the petitioners submitted that subsequently, the disputes were settled between the parties and the de facto complainant filed a petition before the investigating officer stating that he had no further grievance. 8. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that Section 438 of the Code B.A. NO.7282 OF 2009 :: 4 :: of Criminal Procedure would not apply in a case where an offence under the Act is alleged. 9. 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 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. 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 grant bail. 10. 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 offence is triable exclusively by the Court of Sessions. 11. In the peculiar facts and circumstances of the case, I am of the view that it would be just and reasonable to grant bail to the petitioners. B.A. NO.7282 OF 2009 :: 5 :: For the aforesaid reasons, the Bail Application is disposed of as follows: i) The petitioners shall surrender before the Judicial Magistrate of the First Class-III, Thrissur within a period of two weeks from today and apply for bail; ii) If the petitioners comply with the above direction, the learned Magistrate shall grant bail to the petitioners on such condition as may be deemed fit and proper in the facts and circumstances of the case. (K.T.SANKARAN) Judge ahz/