IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Bail Appl..No. 6943 of 2011 CRIME NO.281 OF 2011 OF AMBALATHARA POLICE STATION, KASARAGOD. PETITIONER/ACCUSED -------------------------------------- AJEESH KUMAR . P., AGED 27 YEARS, S/O. AMBU NAIR, THANNIKKAL HOUSE, THAYANNUR P.O., KASARAGOD DISTRICT. BY ADV. SMT.T.SUDHAMANI RESPONDENT: COMPLAINANT -------------------------- THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6943 OF 2011 E ------------------------------------------------------ Dated this the 2nd day of September, 2011 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.281 of 2011 of Ambalathara Police Station, Kasaragod District. 2. The offences alleged against the petitioner are under Sections 341 and 354 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is the following: On 13.8.2011, when the de facto complainant was walking along the road, the accused called her and asked where she was studying. He put his hand on the shoulder of the de facto complainant. Later, the accused caught hold of her by her hand. Another person came on bike at that time. On enquiry, the accused told him that the de facto complainant had abused him on an earlier occasion. The de facto complainant B.A. NO. 6943 OF 2011 :: 2 :: belongs to a Scheduled Tribe. Therefore, offence under Section 3 (1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was included in the case. 4. It is submitted that the offence under Sections 341 and 354 of the Indian Penal Code are bailable. However, the offence under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not bailable. The counsel also submitted that there is no allegation that the petitioner had intention to outrage the modesty of the de facto complainant. Even if all the allegations are taken as true, it is submitted that no offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out. 5. 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 B.A. NO. 6943 OF 2011 :: 3 :: 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. 6. 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 Judicial Magistrate of the First Class I, Hosdurg within three 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 ahz/