IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Bail Appl..No. 8740 of 2011() ----------------------------- CRIME NO.1608/2011 OF FORT COCHIN POLICE STATION PETITIONER : ACCUSED : --------------------------- K.C.JOHNSON,SON OF LATE CLEETUS, HOUSE NO. 11/362, KANAPALLY HOUSE, SOUTH THAMARAPARAMBU, FORT COCHIN, KOCHI 682 001. BY ADV. SRI.V.JOHN MANI RESPONDENT: STATE -------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.8740 of 2011 ---------------------------------------------- Dated this the 04th day of November, 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.1608 of 2011 of Fort Cochin 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. The certified copy of the F.I.R. was produced by the petitioner which is taken on record. 4. The Crime was registered on the basis of a petition filed by one B.C.Purushan stating that he and his wife were abused by the petitioner by calling Caste name on 03/10/2011. The learned counsel for the petitioner submitted that Annexure-1 representation was submitted by the petitioner before the Secretary of the Residents' Association alleging the constant mischief caused by his neighbours. The learned counsel for the petitioner submitted that the persons referred Bail Appln.No.8740/2011 : 2 : to in the Anneure-1 are the de facto complainant and his relatives. It is stated in the paragraph 3 of the bail application thus:- 3. It is most humbly submitted that the actual facts involved is as follows; the petitioner is residing at the address mentioned above. To the north of the petitioner's house is the house of one Jose Mendes wherein one Mr.Rajan and Prameela are residing on rent. The properties mentioned above are separated by a compound wall having a height of only 4 feet. It is submitted that the said Rajan as well as other persons who visits them used to urinate adjacent to the said compound wall which resulted in noxious and unbearable smell emenating therefrom. When the petitioner and his wife objected to the same, they showered the petitioner and his wife with obscene foul words and insults which resulted in filing of a complaint before the Mullavalappu Residents Association. A true copy of the complaint dated 30/09/2011 filed before the Mullavalappu Residents Association is produced herewith and marked as Annexure 1. It is on knowing about the said complaint that the relative of the said Rajan who is retired Police personnel preferred the above mentioned complaint with the sole intention of harassing the petitioner. It is submitted that the petitioner even does not know the de facto complainant. He is a taxi driver who is the sole bread winner of his family and is having Bail Appln.No.8740/2011 : 3 : two girl children. Since the de facto complainant being retired police personnel, it is his criminal mind which have set the present vexacious and concocted criminal prosecution in motion. The petitioner therefore genuinely apprehends that the de facto complainant will cause to arrest the petitioner and will further put him to physical and mental agony.” 5. On a consideration of the various facts and circumstances of the case, I am of the view that it is necessary to protect the interests of the petitioner. Since the offence alleged is under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, if the petitioner surrenders before the Magistrate's court, it is most likely that he would be remanded on the ground that the offence is a sessions offence. 6. The offence 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 Bail Appln.No.8740/2011 : 4 : 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 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. 7. 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 within two weeks and move for regular bail. 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 skj