IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 Bail Appl..No. 6204 of 2009() ------------------------------------- CRIME NO.753/2009 OF CHATHANNUR POLICE STATION, KOLLAM. PETITIONERS/ACCUSED A1&A2: --------------------------------------------- 1. BIJU,S/O.BALAN, AGED 36 YEARS, BIJU BHAVAN, ADICHANALLOOR MURI, ADICHANALLOOR VILLAGE, KOLLAM DISTRICT. 2. BINEESH, S/O.SASIDHARAN, AGED 29 YEARS, BINEESH BHAVAN, ADICHANALLOOR MURI, ADICHANALLOOR VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.K.V.ANIL KUMAR RESPONDENT/COMPLAINANT: ------------------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. M.S.BREEZ, PUBLIC PROSECUTOR. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.6204 of 2009 ------------------------------- Dated this the 28th 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. The petitioners are accused Nos.1 and 2 in Crime No.753/2009 of Chathannur Police Station, Kollam. 2. The offences alleged against the petitioners are under Sections 341, 294(b), 506(i) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. 3. The prosecution case is that on 7/10/2009 at 6 P.M., the accused persons restrained the son of the de facto complainant and called him by his caste name. It is alleged that the de facto complainant and his son belong to scheduled caste, while the accused persons are not. 4. Under Section 18 of the Scheduled Caste/ Scheduled Tribe (Prevention of Atrocities) Act provides that an application under Section 438 of the Code of Criminal Procedure is not maintainable in respect of an offence under the Scheduled Caste/ B.A. No.6204/2009 2 Scheduled Tribe (Prevention of Atrocities) Act. In Shanu Vs. State of Kerala [2000(3) K.L.T. 452], it was held that the Magistrate has power to grant bail to an accused in cases coming under Clauses (i) to (xv) of Section 3(1) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. In that case, High Court directed the Magistrate to grant bail to the accused. The decision in Shanu's case was followed in B.A. No. 789/2005 and also in Krishnakumar Vs. State of Kerala (Crl. M.C. No.3036/2004). In Ali Vs. State of Kerala [2000(2) K.L.T.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 in Section 437 of the Code of Criminal Procedure. In Sukumari Vs. State of Kerala [2001(1) K.L.T.22], it was held that the power under Section 437 can be invoked by the Magistrate even in cases involving a Session offence. 5. In the peculiar facts and circumstances of the case, I am of the view that the petitioners can be permitted to surrender before the court of Judicial Magistrate of the First Class, Paravoor within a period of two weeks from today. If the petitioners B.A. No.6204/2009 3 surrender before the Magistrate's Court and apply for bail, the learned Magistrate shall grant bail to them on such conditions as may be deemed fit and proper. The Bail application is disposed of with the aforesaid directions. K.T. SANKARAN, JUDGE scm