IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 Bail Appl..No. 4429 of 2009 CRIME NO.113 OF 2009 OF SOORANAD POLICE STATION PETITIONER: ACCUSED: ------------------------------ SHAJI KUMAR, THENGUVILA VEEDU PORUVAZHY PO,KOLLAM NOW WORKING AT 41 ASSAM RIFLES, C/O. 99 APO BY ADV. SRI.PRATHEESH.P SRI. K.SIJU RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE,SOORANAD POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4429 OF 2009 ------------------------------------------------------ Dated this the 11th August, 2009 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.113 of 2009 of Sooranad Police Station. 2. The offences alleged against the petitioner are under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 294(b) of the Indian Penal Code. 3. The incident alleged in the case occurred on 3.3.2009. The allegation is that the de facto complainant, who belongs to a scheduled caste, was called by his caste name by the petitioner, who belongs to Nair community. The de facto complainant approached the police and gave First Information Statement only on 21.3.2009. It is alleged by the petitioner that this is a false case foisted against him. The petitioner is a serving army personnel in Assam Rifles. It is stated that he is now stationed in the north-eastern States. In the Bail Application, it is stated that the de facto complainant and his friends trespassed into the house of the petitioner on 3.3.2009 and threatened the petitioner and assaulted his B.A. NO. 4429 OF 2009 :: 2 :: aged mother. It is also stated that on 4.3.2009, the petitioner preferred a complaint through his Commandant. Annexure 2 produced along with the Bail Application is the copy of the complaint dated 4.3.2009, submitted by the petitioner to the District Collector, Kollam with copy to the Superintendent of Police, Kollam, the Commandant of Assam Rifles, the Circle Inspector of Police, Sasthamcotta and the Officer-in-charge, Sooranadu Police Station. According to the petitioner, the First Information Statement was given by the de facto complainant as a counter blast to the proceedings initiated at the instance of the petitioner. 4. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that an application under Section 438 of the Code of Criminal Procedure will not be maintainable in respect of an offence covered by the Act. 5. In Shanu v. State of Kerala (2000 (3) KLT 452), this Court has taken the view, relying on the decisions in Satyan v. State of Kerala (1981 KLT 606) and Chellappan v. State of Kerala (1987 (1) KLT 435), that a Magistrate would have jurisdiction to grant bail under Section 437 of the Code of Criminal Procedure even in a case which is triable by a Special Court. In Shanu's case, the offences alleged against the accused were under Section 324 of the Indian Penal Code and Section B.A. NO. 4429 OF 2009 :: 3 :: 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. A direction was issued to the learned Magistrate to enlarge the petitioners therein on bail on appropriate conditions. 6. Taking into account the facts and circumstances of the case, I am of the view that if the petitioner is arrested and detained, it would cause serious hardship to the petitioner who is a serving military personnel. At the same time, Section 18 would be a bar for allowing the application for anticipatory bail. In the facts and circumstances of the case, I am of the view that it is only just and proper to direct the Judicial Magistrate of the First Class, Sasthamcotta to consider the application for bail submitted by the petitioner on his surrender before that court on the same date on which the application for bail is filed and grant bail to the petitioner on such conditions as the learned Magistrate may deem fit. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/