IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 Bail Appl..No. 6440 of 2011 CRIME NO.634 OF 2011 OF ADIMALI POLICE STATION, IDUKKI DISTRICT PETITIONER/ACCUSED -------------------------------------- ANEESH,S/O.YOHANNAN,KALLUMNKAL HOUSE, 14TH MILE, VALARA.P.O, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK,IDUKKI DISTRICT. BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REP.BY S.I.OF POLICE, ADIMALY POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN -682031. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6440 OF 2011 B ------------------------------------------------------ Dated this the 29th day of August, 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.634 of 2011 of Adimaly Police Station, Idukki District. 2. The offences alleged against the petitioner are under Section 323 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 that on 5.7.2011, the accused stayed in the house of the de facto complainant. The de facto complainant's husband and the accused are friends. During night, they consumed alcohol. At about 2 AM on 6.7.2011, it is alleged that the accused came to the room where the de facto complainant was sleeping and tried to molest her. B.A. NO.6440 OF 2011 :: 2 :: 4. The learned counsel for the petitioner submitted that on the date of incident, the petitioner was brutally attacked by the de facto complainant's husband with dangerous weapons and he sustained serious injuries. The counsel submitted that Crime No.633 of 2011 was registered at Adimaly Police Station against the husband of the de facto complainant for the offences under Sections 326 and 307 of the Indian Penal Code. The counsel submits that the petitioner was in the hospital for fifteen days. 5. Taking into account the facts and circumstances of the case, I am of the view that some indulgence is required to be shown in favour of the petitioner. The offence alleged against him under the Indian Penal Code is bailable. But the offence alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is non-bailable. The learned counsel for the petitioner submitted that if the petitioner is arrested and produced before the Magistrate, bail would not be granted as the offence is a Sessions offence. 6. 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 B.A. NO.6440 OF 2011 :: 3 :: 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 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 Judicial Magistrate of the First Class, Adimaly within two weeks and move for regular bail. When such an application is filed, the learned Magistrate shall grant B.A. NO.6440 OF 2011 :: 4 :: 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/