IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 Bail Appl..No. 5873 of 2009 CRIME NO.244 OF 2009 OF ERATTUPETTA POLICE STATION PETITIONER/ACCUSED -------------------------------------- RAJESH T.K., THUNDIYIL HOUSE, NADACKAL P.O., ERATTUPETTA. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS: STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, ERATTUPETTA. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5873 OF 2009 ------------------------------------------------------ Dated this the 14th day of October, 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.244 of 2009 of Erattupetta Police Station. 2. The offence alleged against the petitioner is under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. It would appear that the de facto complainant filed a petition before the District Collector, Kottayam alleging commission of various acts by several persons against her. The District Collector forwarded the petition to the District Superintendent of Police, directing the latter to register a crime under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It is submitted by the learned counsel for the petitioner and agreed to by the learned Public Prosecutor that the District Collector has no jurisdiction to issue such a direction to the District Superintendent of Police. B.A. NO. 5864 OF 2009 :: 2 :: 4. The allegation is that the petitioner called the de facto complainant by her caste name. 5. I have gone through the case diary. In the petition submitted to the District Collector, several allegations were made and it was alleged that the persons mentioned therein committed the offence. It is submitted by the learned Public Prosecutor that on investigation it was found that the allegations made against all those, except the petitioner, are false. 6. Learned counsel for the petitioner submitted that the case is a foisted one against him. The de facto complainant tried to make several persons as accused persons. It was revealed that the case put forwarded by her was false. It is also submitted by the learned counsel for the petitioner that if the petitioner is arrested and detained, he would be put to great hardship and that he would be subjected to mental and physical harassment. 7. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that an application under Section 438 would not be maintainable in a case where offence B.A. NO. 5864 OF 2009 :: 3 :: under the Act is alleged. Learned counsel for the petitioner relied on the decisions in Shanu v. State of Kerala (2000 (3) KLT 452), (2005(1) KLD 250 (B.A.No.789 of 2005), Krishnakumar v. State of Kerala (2005 (1) KLD 42 (Crl.M.C.No.3036 of 2004) and also the decision in Ali v. State of Kerala (2000 (2) KLT 280). 8. In Shanu v. State of Kerala (2000(3) KLT 452), a learned single Judge of this Court held that the Magistrate has power to grant bail to the accused in cases coming under clause (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. 9. The decision in Shanu's case was followed by another learned single Judge in B.A.No.789 of 2005 and by another learned single Judge in Krishnakumar v. State of Kerala (2005 (1) KLD 42 (Crl.M.C.No.3036 of 2004). In 2000(2) KLT 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 under Section 437 of the Code of Criminal Procedure. B.A. NO. 5864 OF 2009 :: 4 :: 10. 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 Sessions. 11. In view of the decisions referred to above and also taking note of the facts and circumstances of the case, I am of the view that the petitioner can be permitted to appear before the learned Magistrate having jurisdiction. It is also proper to issue a direction to the learned Magistrate to grant bail to the petitioner. 12. Accordingly, the petitioner is permitted to appear before the Court of the Judicial Magistrate of the First Class, Erattupetta, within a period of ten days from today and move for regular bail. If the petitioner appears and files a bail application, the learned Magistrate shall release the petitioner on bail on such conditions as the learned Magistrate may deem fit and proper to impose. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/