IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 Bail Appl..No. 6778 of 2009() ---------------------------------------- CRIME NO.1792/2009 OF KOTTARAKKARA POLICE STATION. ......... PETITIONER (S) /ACCUSED --------------------------- RAMANI VARGHESE, W/O.GHEEVARGHESE, SHIJU BHAVANAM, THEVALAPURAM WEST, PAVITHRESWARAM P.O., KOTTARAKKARA, KOLLAM. BY ADV. MR.SAJU.S.A RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KOTTARAKKARA POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss K.T. SANKARAN, J. --------------------------- B.A. No. 6778 of 2009 ------------------------------------ Dated this the 30th 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. The petitioner is the accused in Crime No. 1792/2009 of Kottarakkara Police Station. 2. The offences alleged against the petitioner are under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The Defacto complainant is a member of a Panchayath. He belongs to a Scheduled Caste. The prosecution case is that the accused called him by caste name. It is stated that the accused constructed a compound wall encroaching upon a portion of the public property. It would appear that the defacto complainant went there in his capacity as a Panchayath Member. There was exchange of words between the parties. The allegation is that at that time, the accused called him by his caste B.A. No. 6778 of 2009 2 name. 4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. I have also perused the Case Diary. 5. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that Section 438 of the Code of Criminal Procedure would not be applicable in the case of an offence under the Act. 6. In Shanu Vs. State of Kerala [ 2000(3) K.L.T. 452], it was held that the Magistrate has power to grant bail to an accused in cases coming under Clauses(i) to (xv) of Section 3(1) of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act. In that case, High Court directed the Magistrate to grant bail to the accused. The decision in Shanu's case was followed in B. A. No.789/2005 and also in Krishnakumar Vs. state of Kerala (Crl. M. C. No.3036/2004). In Ali Vs. State of Kerala [2000(2) K.L.T.280], it was held that there is no bar for the Magistrate to grant bail in such cases on the basis of the general principles enunciated in Section 437 of the Code of Criminal Procedure. In Sukumari Vs. State of Kerala [2001(1) B.A. No. 6778 of 2009 3 K.L.T.22], it was held that the power under Section 437 can be invoked by the Magistrate even in cases involving a Session Offence. Accordingly, the Bail Application is disposed of as follows: 1. The petitioner shall appear before the Judicial Magistrate of the First class, Kottarakkara within a period of ten days from today and apply for Regular Bail. 2. If the petitioner complies with the above direction, the learned Magistrate shall grant of bail to the petitioner on such conditions as may be deemed fit and proper if the facts and circumstances of the case. K.T. SANKARAN, JUDGE ln