IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 Bail Appl..No. 8126 of 2007() ----------------------------- [CRIME NO.132/2007 OF CHITTAR POLICE STATION] : PETITIONERS/ACCUSED ------------------------------------ 1. BANI KOSHY, AGED 29 YEARS, S/O.GEORGE KOSHY, VINCENT BHAVAN, CHITTAR P.O. 2. PILSOR KOSHY, AGED 26 YEARS, S/O.GEORGE KOSHY, VINCENT BHAVAN, CHITTAR P.O. 3. GEORGE KOSHY, AGED 60 YEARS, S/O. KUNJU KOSHY, VINCENT BHAVAN, CHITTAR P.O. BY ADV. SRI.V.SETHUNATH RESPONDENTS: COMPLAINANT/STATE ------------------------------ 1. THE DY. S.P. OF POLICE, PATHANAMTHITTA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.8126 of 2007 ---------------------------------------- Dated this the 8th day of January 2008 O R D E R Application for anticipatory bail. The petitioners are accused 1 to 3. They face allegations in a crime registered for offences punishable inter alia under Sections 3(i)(x) and 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. All the other offences are bailable. In the wake of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, a criminal court is not jurisdictionally competent to grant anticipatory bail under Section 438 Cr.P.C. Of course the allegations raised do not constitute an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and such Section is erroneously included in the F.I.R, such inclusion may not oust the jurisdiction of this court under Section 438 Cr.P.C. 2. The learned Public Prosecutor contends that the allegation, if accepted, do constitute an offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and I find merit in the opposition raised by the learned Public Prosecutor. A more detailed discussion appears to be not necessary in the facts and circumstances of this case. B.A.No.8126/07 2 3. It is for the petitioner to appear before the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. This court has time and again reiterated in - Ali v. State of Kerala [2000(2) KLT 280, Shanu v. State of Kerala [2000(3) KLT 452, Krishnakumar v. State of Kerala [20005(1) KLD(Cri.)42] and P.P.Kader v. State of Kerala [2005(1) KLD (Cri.)250] that the mere fact that the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is triable exclusively by a court of Session will not oust the jurisdiction of the learned Magistrate under Section 437 Cr.P.C. The petitioner must hence surrender before the learned Magistrate and seek regular bail. 4. If the petitioners surrender before the learned Magistrate and apply or bail after giving sufficient prior notice to the prosecutor in charge of the case, needless to say, the learned Magistrate must proceed to pass appropriate orders on merits in accordance with law and expeditiously - on the date of surrender itself. 5. This petition is accordingly dismissed with the above observations. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge B.A.No.8126/07 3 B.A.No.8126/07 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007