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. 6698 of 2011() ----------------------------- Crime No.178 of 2011 of Ambalathara Police Station, Kasaragod District. PETITIONER/ACCUSED -------------------------------------- ASHRAF C.H., AGED 32 YEARS, S/O. ABDUL RAHIMAN, RESIDING AT A.M.HOUSE, CHALINGAL, PULLUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): COMPLAINANT/STATE -------------------------------- THE STATION HOUSE OFFICER, AMBALATHARA POLICE STATION, KASARAGOD DISTRICT, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P.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.6698 OF 2011 --------------------------------- Dated this the 24th day of August, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The Petitioner is the sole accused in Crime No.178 of 2011 of Ambalathara Police Station, Kasaragod District. 2. The offences alleged against the petitioner are under Section 376 of the Indian Penal Code and Section 3 (1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is that the defacto complainant belongs to a Scheduled Tribe. The accused had sexual contact with the defacto complainant 8 years ago, and in that relationship a child was born. It is alleged that the accused promised to marry her, but he did not comply with his promise. Though the incident took place 8 years ago, the B.A. No.6698 OF 2011 2 Crime was registered only in 2011. At present, the victim is aged 38 years. 4. It is submitted by the learned counsel for the petitioner that if the petitioner surrenders before the learned Magistrate, the petitioner would be remanded to judicial custody as the offence alleged is an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act . 5. The offences alleged against the petitioner include an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 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 B.A. No.6698 OF 2011 3 held that there is 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. 6. 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 petitioner to appear before the Judicial Magistrate of the First Class-I, Hosdurg within two weeks and move for regular bail. When such an application is filed, the learned Magistrate shall grant bail to the petitioner on such conditions as may be deemed fit and proper, including the following conditions. a) The petitioner shall co-operate with the Investigating Officer and shall undergo the potency test. The petitioner shall also B.A. No.6698 OF 2011 4 accompany the Investigating Officer to any place for the purpose of investigation, if it becomes necessary. b) The petitioner shall also agree to undergo the DNA test and he shall do all that is necessary for the purpose. The Bail Application is disposed of as above. K.T.SANKARAN, JUDGE. cms