IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 Bail Appl..No. 5432 of 2011() ----------------------------- CRIME NO.213/2011 OF KOZHINJAMPARA POLICE STATION, PALAKKAD PETITIONERS/ACCUSED 1 & 2: ------------------------------------ 1. KUMARAN, S/O.KITTU, AGED 31 YEARS, NELLIPPALLAM HOUSE, NATTUKAL P.O., PALAKKAD. 2. PRADEEP, S/O.PRABHAKARAN, NELLIPPALLAM HOUSE, NATTUKAL P.O., PALAKKAD. BY ADV. SRI.S.RAJEEV RESPONDENT(S): STATE -------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.213/2011 OF KOZHINJAMPARA POLICE STATION, PALAKKAD DISTRICT). PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.5432 of 2011 --------------------------- Dated this the 23rd 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 petitioners are accused Nos.1 and 2 in Crime No.213 of 2011 of Kozhinjampara Police Station, Palakkad District. 2. The offences alleged against the petitioners are under Sections 454 and 380 read with Section 149 of the Indian Penal Code and Sections 3(1)(v), 3(1)(x) and 3(1)(xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The crime was registered on the basis of a complaint filed by the de facto complainant before the Magistrate's Court, which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure. BA 5432/2011 2 4. The allegation made by the de facto complainant is that the son of the de facto complainant fell in love with the sister of accused No.2. The de facto complainant belongs to a scheduled caste. The accused belong to Ezhava community. On account of such rivalry, the accused abused the de facto complainant at the pathway near the house of the de facto complainant. She was called by her caste name. It is also alleged that the accused forcibly entered into the house of the de facto complainant and destroyed the house hold articles and took away some of them. 5. The learned counsel for the petitioners submitted that the sister of accused No.2 was abducted by the son of the de facto complainant and Crime No.779 of 2010 was registered at Palakkad North Town Police Station for 'man missing'. A Habeas Corpus Writ Petition was filed before the High Court and the son of the de facto complainant and sister of accused No.2 appeared before the High Court. It is stated that the girl was sent along with the second accused (second petitioner in the present case). The petitioners stated that the present case is a BA 5432/2011 3 foisted one on account of the rivalry towards the petitioners. 6. I have perused the case diary. The investigation so far conducted revealed that the de facto complainant shifted her residence after the death of her husband and she was proposing to sell the property. The neighbours stated that they did not see or hear any such incident as alleged against the accused. 7. 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. BA 5432/2011 4 8. 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. 9. 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 petitioners shall appear before the Judicial Magistrate of the First Class, Chittur, 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 them on such conditions as may be deemed fit and proper in the facts and circumstances of the case. K.T.SANKARAN JUDGE csl