IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Bail Appl..No. 5183 of 2009 CRIME NO.147 OF 2009 OF SREEKANDAPURAM POLICE STATION PETITIONERS/ACCUSED 1 & 2 --------------------------------------------- 1. BENNY AUGUSTINE, PUTHIYEDATHPARAMBIL, PARIPPAI, CHENGALAYI P.O., KANNUR. 2. SELIN BENNU, PUTHIYEDATHPARAMBIL, PARIPPAI, CHENGALAYI P.O., KANNUR. BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH THE SUB INSPECTOR OF POLICE, SREEKANDAPURAM POLICE STATION, KANNUR DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 5183 OF 2009 ------------------------------------------------------ Dated this the 16th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are the accused persons in Crime No.147 of 2009 of Sreekandapuram Police Station, Kannur District. 2. The offences alleged against the petitioners are under Sections 465, 467, 468 and 471 read with Section 34 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. When the Bail Application came up for hearing on 30.9.2009, the matter was argued in detail by the learned counsel for the petitioners and the learned Public Prosecutor. I had also gone through the case diary. After satisfying that there is substance in the contention put forward by the petitioners, the following order was passed on 30.9.2009: B.A. NO. 5183 OF 2009 :: 2 :: “After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 AM on 12th and 13th October, 2009. Post on 16/10/2009. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.147 of 2009 of Sreekandapuram Police Station, Kannur.” 4. It is submitted by the learned counsel for the petitioners and the learned Public Prosecutor that the petitioners have complied with the directions contained in the order dated 30.9.2009. An offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also alleged. Apparently, Section 18 of the Act bars an application under Section 438 of the Code of Criminal Procedure. B.A. NO. 5183 OF 2009 :: 3 :: 5. In Shanu v. State of Kerala (2000(3) KLT 452), a learned single Judge of this Court held that the Magistrate has power to grant bail to the accused in cases coming under clause (i) to (xv) of Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In that case, the High Court directed the Magistrate to grant bail. 6. The decision in Shanu's case was followed by another learned single Judge in B.A.No.789 of 2005 and by another learned single Judge in Krishnakumar v. State of Kerala (2005 (1) KLD 42 (Crl.M.C.No.3036 of 2004). In Ali v. State of Kerala (2000(2) KLT 280), it was held that there is no bar for the Magistrate to grant bail in such cases on the basis of the general principles enunciated under Section 437 of the Code of Criminal Procedure. 7. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 can be exercised even in cases where offence is triable exclusively by the Court of Sessions. 8. In the facts and circumstances of the case, I am of the view that a direction can be issued to the Judicial Magistrate of the First B.A. NO. 5183 OF 2009 :: 4 :: Class, Thaliparamba to grant bail to the petitioners on their surrender before Court. Accordingly, there will be a direction to the petitioners to surrender before the Court of the Judicial Magistrate of the First Class, Thaliparamba between 26.10.2009 and 30.10.2009. On such surrender and on moving an application for bail, the learned Magistrate shall grant bail to the petitioners on such conditions as the learned Magistrate may deem fit and proper. The Bail Application is disposed of as above. The petitioners shall produce a copy of this order before the learned Magistrate. (K.T.SANKARAN) Judge ahz/