IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Bail Appl..No. 1059 of 2010() -------------------------------------- CRIME NO.116 OF 2010 OF ELOOR POLICE STATION, ERNAKULAM PETITIONERS/ACCUSED: ------------------------------------------- 1. RAHUL RAJ, AGED 20 YEARS, S/O. RAJEEV, FACT TOWNSHIP QUARTERS, OD NO.111, UDYOGMANDAL. 2. SHYAM RAJ, AGED 25 YEARS, S/O. RAJEEV, FACT TOWNSHIP QUARTERS, OD NO.111, UDYOGMANDAL. 3. B.RAJEEV, AGED 50 YEARS, FACT TOWNSHIP QUARTERS, OD NO.111, UDYOGMANDAL. BY ADV. SRI.S.RAJEEV RESPONDENT/STATE: ------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.116 OF 2010 OF ELOOR POLICE STATION). SRI.TEKCHAND, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.1059 of 2010 ------------------------------- Dated this the 3rd day of March, 2010 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 to 3 in Crime No.116 of 2010 of Eloor Police Station, Ernakulam. 2. The offences alleged against the petitioners are under Sections 451 and 323 read with Section 34 of the Indian Penal Code and Section 3(1)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is that on 2/2/2010 at 9.15 P.M., the accused persons quarreled with the son of the de facto complainant. After a few minutes, the accused came to the house of the de facto complainant and abused her calling her caste name and also assaulted her husband and children. It is stated that the de facto complainant belongs to scheduled caste. 4. The learned counsel for the petitioners submitted that on 2/2/2010 at about 9 P.M., the husband and children of the de facto complainant attacked the first petitioner. He sustained injuries. Crime No.115/2010 was registered against the husband B.A. No.1059/2010 2 and children of the de facto complainant in the present case. In the F.I. Statement in Crime No. 115 of 2010, it is stated that the first petitioner herein informed the police and the police came to the spot accordingly. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I have also perused the Case Diary. Prima facie, it is seen that no materials are available at present to satisfy the ingredients of Clauses (x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. There is no statement in the F.I.R to show that there was an intention on the part of the petitioners within the meaning of Clause (x) or an intention to dishonour or outrage the modesty of the de facto complainant as mentioned in Section 3(1)(xi) of the Act. No such information is gathered during investigation also. However, it is not proper to arrive at a conclusion at this stage on these aspects, as the final conclusion is to be arrived at on the basis of the evidence in the case. 6. Section 18 of the Scheduled Castes and Scheduled B.A. No.1059/2010 3 Tribes (Prevention of Atrocities) Act provides that an application under Section 438 of the Code of Criminal Procedure is not maintainable in respect of an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In Shanu Vs. State of Kerala [2000(3) K.L.T. 452], it was held that the Magistrate has power to grant bail to an accused in cases coming under Clauses (i) to (xv) of Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In that case, High Court directed the Magistrate to grant bail to the accused. The decision in Shanu's case was followed in B.A. No. 789/2005 and also in Krishnakumar Vs. State of Kerala (Crl. M.C. No.3036/2004). In Ali Vs. State of Kerala [2000(2) K.L.T.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 in Section 437 of the Code of Criminal Procedure. In Sukumari Vs. State of Kerala [2001(1) K.L.T.22], it was held that the power under Section 437 can be invoked by the Magistrate even in cases involving a Session offence. B.A. No.1059/2010 4 7. For the aforesaid reasons, the Bail Application is disposed of as follows: a) The petitioners shall appear before the court of the Judicial Magistrate of the First Class, North Paravur, within a period of two weeks from today and apply for bail. b) If the petitioners comply with the above condition, they shall be released on bail on such conditions as may be deemed fit and proper by the learned Magistrate. K.T. SANKARAN, JUDGE scm