IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 Bail Appl..No. 5739 of 2011() ----------------------------- (CRIME NO.143/2010 OF POZHIYOOR POLICE STATION) PETITIONER ------------------------------ GOPAKUMARAN NAIR S/O.VELAYUDHAN PILLAI, GOKULAM, GRAMAKONAM, THRIUPURAM P.O., THIRUVANANTHAPURAM DISTRICT BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P.SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------- B.A. No.5739 OF 2011 --------------------------------- Dated this the 8th 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 accused in Crime No.143 of 2010 of the Pozhiyoor Police Station. 2. The offence alleged against the petitioner is under Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is the following: The defacto complainant belongs to a Scheduled Caste. He took a loan of `60,000/- (Rupees Sixty Thousand only) from the accused. Towards the security for the loan, the defacto complainant executed a sale deed in respect of his residential plot in favour of the accused. The understanding was that on payment of the loan amount with interest, the B.A. No.5739 OF 2011 2 property would be reconveyed to the defacto complainant. A sum of `1,17,000/-(Rupees One lakh Seventeen thousand only) was paid by the defacto complainant to the accused. However, the accused did not retransfer the property to the defacto complainant as agreed. 4. The learned counsel for the petitioner submitted that the defacto complainant does not belong to a Scheduled Caste. The petitioner relies on Annexure-G report submitted by the Village Officer to the Tahsildar to the effect that Thankappan residing in Kulathur village is living as if he belongs to Samber Christian. 5. The learned Public Prosecutor submitted that Annexure-G is not a certificate, but it is only a report. It cannot be concluded by that report that the defacto complainant belongs to Christian community. To a query, the learned Public Prosecutor submitted that the Tahsildar was addressed thrice to get the community certificate of the defacto complainant. But so far, the community certificate has not been issued by the Tahsildar. B.A. No.5739 OF 2011 3 6. In the circumstances mentioned above, I think the interests of the petitioner should be protected. Without certainty as to the community of the defacto complainant, the personal liberty of the accused cannot be curtailed on the ground that an offence under Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is alleged against him. 7. The offences alleged against the petitioner is 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 held that there is no B.A. No.5739 OF 2011 4 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. 8. 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 Magistrate concerned and move for regular bail within a period of two weeks. 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. The Bail Application is disposed of as above. K.T.SANKARAN, JUDGE. cms