IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 Bail Appl..No. 3862 of 2009() ------------------------------------- CRIME NO. 140/2009 OF KOYALMANNAM POLICE STATION .......................... PETITIONERS/ACCUSED A1 TO A3: ------------------------------------------------ 1. UDAYAKUMAR, AGED 39 YEARS, S/O. SUBRAMANIYANI, ALINGAL HOUSE, COYALMANNAM, PALAKKAD. 2. RAMESH, AGED 32 YEARS, S/O.KUNJU, ALINGAL HOUSE, COYALMANNAM, PALAKKAD. 3. AJEESH, S/O. KRISHNAN, AGED 22 YEARS, ALINGAL HOUSE, COYALMANNAM, PALAKKAD. BY ADV. SRI. K. ANAND RESPONDENTS/STATE & COMPLAINANT: -------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE SUB INSPECTOR OF POLICE, COYALMANNAM POLICE STATION. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 3862 of 2009 ------------------------------------ Dated this the 13th day of August, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos. 1 to 3 in Crime No.140/2009 of Coyalmannam Police Station, Palakkad District. 2. The offences alleged against the petitioners are under Sections 447, 341, 323 and 506 (1) read with Section 34 of the Indian Penal Code and Section 3 (i) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is that the accused persons trespassed into the courtyard of the residence of the defacto complainant and assaulted him and used abusive language. He was called caste name while using the abusive words. 4. Learned counsel for the petitioners submitted that all the IPC offences mentioned in the F.I.R. are bailable offences. Only the offence under Section 3 (i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred as the Act) is non-bailable.. The counsel contended that B.A. No. 3862 of 2009 2 the allegations made in the F.I.R. do not constitute an offence under Section 3 (i) (x) of the Act. It is also submitted that no prima facie case is established under Section 3 (i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The counsel for the petitioner submitted that if the allegations in the F.I. R. do not make out an offence under Section 3 (i) (x) of the Act, the bar under Section 18 of the Act prohibiting maintainability of an application under section 438 of Code of Criminal Procedure would not be attracted. The counsel relied on various decisions in support of that contention. 5. On a perusal of the first information report, I do not think that on facts it can be said that no offence is made out under Section 3 (i) (x). Therefore I do not propose to consider the contention as to the maintainability of the application under Section 438 of the Code of Criminal Procedure. 7. In Shanu Vs. State of Kerala (2000 (3) K.L.T. 452), this court has taken the view that in cases coming under clauses (1) to (xv) of Sub Section (1) of Section 3 of the Act, the Magistrate has power to grant bail to the accused in spite of the fact that the offence is triable by Sessions Court. The decision B.A. No. 3862 of 2009 3 in Shanu's case was followed in 2005 (1) K.L.D 250 and 2005 (1) K.L.D. 42. In 2000 (2) K.L.T 280 another learned single Judge took the view 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. 8. In some of the cases disposed by this court as mentioned above, bail was directed to be granted by the Magistrate, while in some others, the learned Magistrate was directed to consider the Bail Application. 9. Considering the facts and circumstances of this case, I am of the view that the Bail Application can be disposed of in the following manner. 1. The petitioner shall surrender before the Judicial Magistrate of the First Class-I, Palakkad on or before 25th August, 2009 and move an application for Bail. 2. On such Bail Application being moved, the learned Magistrate shall dispose of the Bail Application on the same date on which it is filed. The registry shall forward a copy of this order to the Court of the Judicial Magistrate of the First Class-I, palakkad. K.T. SANKARAN, JUDGE ln