IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Bail Appl..No. 6345 of 2009 CRIME NO.13 OF 2009, THIRUNELLY POLICE STATION, WAYANAD PETITIONER/ACCUSED 1,2,&4: ---------------------------------------------- 1. HAMIDALI, S/O.ABDUL KHADIR, MURINGOLI HOUSE, BAVALI P.O., WAYANAD DISTRICT. 2. HARIS, S/O.HAMSA, PALLATH HOUSE, BAVALI P.O., WAYANAD DISTRICT. 3. MUHAMMADALI, S/O.ABDUL KHADIR, MURINGOLI HOUSE, BAVALI P.O., WAYANAD DISTRICT. BY ADV. SRI.KRISHNA PRASAD. S SRI.SUJITH P.SURENDRAN RESPONDENT: COMPLAINANT & STATE: ----------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING SUB INSPECTOR OF POLICE, THIRUNELLY POLICE STATION, WAYANAD DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6345 OF 2009 ------------------------------------------------------ Dated this the 16th 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. Petitioners are accused Nos.1, 2 and 4 in Crime No.13 of 2009 of Thirunelly Police Station. 2. The offences alleged against the petitioners are under Section 323 of the Indian Penal Code and Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The case of the de facto complainant is that he was beaten up by the accused persons and he was called his caste name. The de facto complainant belongs to a scheduled tribe. 4. The first petitioner is a member of the Panchayat. The case of the petitioners is that the de facto complainant was found in possession of illicit arrack. He was taken to the excise office. He created some scenes there and obstructed the official duties of the B.A. NO. 6345 OF 2009 :: 2 :: Excise Officials. A case was initiated against the de facto complainant. According to the petitioners, the present case was foisted against them incorporating the offence under Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act only to see that no bail is granted by the court. 5. When the Bail Application came up for hearing on 4.11.2009, the following order was passed: “After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 AM on 9th and 10th November, 2009. Post on 16.11.2009. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.13/2009 of Thirunelly Police Station.” 6. It is submitted by the learned counsel for the petitioners B.A. NO. 6345 OF 2009 :: 3 :: and the learned Public Prosecutor that the petitioners have complied with the direction in the order dated 4.11.2009. 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. 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 Sessions. 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 B.A. NO. 6345 OF 2009 :: 4 :: disposed of in the following manner: i) The petitioners shall appear before the Judicial Magistrate of the First Class II, Mananthavady, within a period of ten days 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 ahz/