IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Bail Appl..No. 6122 of 2011() ----------------------------- CRIME NO.163/2011 OF THIRUNELLY POLICE STATION, WAYANADU PETITIONER/ACCUSED --------------------------- ABEY THOMAS, AGED 34 YEARS, S/O.THOMAS, ELAPPURA (H), AARATTUTHARA (PO), MANANTHAWADY, WAYANADU. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.6122 of 2011 --------------------------- Dated this the 24th day of August, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.163 of 2011 of Thirunelly Police Station. 2. The offences alleged against the petitioner are under Section 376 of the Indian Penal Code and Sections 3(1) (vi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is the following : The petitioner was having a ginger farm in Coorg in Karnataka District. The petitioner took the victim, a tribal girl when she was aged about 14 years, to his ginger farm in Coorg. He had sexual intercourse with the victim about ten years ago. She became pregnant and gave birth to a child. BA 6122/2011 2 4. The learned counsel for the petitioner submitted that the victim is now married and the petitioner is also having wife and children. It is submitted that there is no shred of evidence to prove the allegations levelled against the petitioner. It is submitted that if the petitioner is arrested and produced before court, the learned Magistrate would not grant bail since the offence is a sessions offence. If the petitioner is detained in jail, for an offence which allegedly took place ten years ago, he would be put to irreparable injury and great hardship. 5. In the peculiar facts and circumstances of the case, I am of the view that it is necessary to protect the interests of the petitioner by giving appropriate directions to the learned Magistrate. 6. 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 BA 6122/2011 3 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. 7. 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 Session. 8. 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 petitioner shall appear before the Judicial Magistrate of the First Class II, Mananthavady, within a period of two weeks from today and apply for bail. BA 6122/2011 4 ii) If the petitioner complies with the above direction, the learned Magistrate shall grant bail to him on such conditions as may be deemed fit and proper in the facts and circumstances of the case. K.T.SANKARAN, JUDGE csl