IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 Bail Appl..No. 5701 of 2011() ----------------------------- CRIME NO.51/2010 OF KOLATHUR POLICE STATION, MALAPPURAM .................... PETITIONER/ACCUSED : -------------------------- MOHAMMED HASSAN,S/O.ALI,MANCHALAMKUZHI HOUSE,PANANGAMGARA,RAMAPURAM.P.O, MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. THE SUB INSPECTOR OF POLICE,KOLATHUR POLICE STATION,MALAPPURAM DISTRICT,PIN-679338. 2. THE DEPUTY SUPERINTENDENT OF POLICE, PERINTHALMANNA,PIN-679322. 3. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,KOCHI-682031. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.5701 of 2011 --------------------------- Dated this the 23rd 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.51 of 2010 of Kolathur Police Station, Malappuram District. 2. The offences alleged against the petitioner are under Sections 376 and 366 of the Indian Penal Code and Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The case of the prosecution is the following : The petitioner fell in love with the de facto complainant in 2005. On 16.10.2005, he took her to different parts of Kozhikode city. Thereafter, they went to Mangalore along with a friend of the accused. The accused and his friend remained in one room and the de facto complainant stayed in another room in a lodge at BA 5701/2011 2 Mangalore. It is alleged that at 3 A.M. on 17.10.2005, the accused made entry into the room of the de facto complainant and without her consent, he had sexual intercourse with her. 4. The de facto complainant and the accused used to contact each other over telephone even thereafter. The petitioner/accused went to Gulf and then also the contact continued. When the wedding of the accused was fixed, the de facto complainant approached the police on 26.2.2010 with the allegations against the petitioner and the FIR was registered. 5. The learned counsel for the petitioner submitted that the ingredients of rape are not attracted in the present case. He also submitted that the ingredients of Section 3(1)(xii) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not, prima facie, shown to exist. Even going by the allegations, no offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is made out, submits the counsel. BA 5701/2011 3 6. The petitioner and the de facto complainant together filed Crl.M.C.No.1693 of 2011 to quash the proceedings. Along with Crl.M.C., an affidavit sworn to by the de facto complainant was also produced. The affidavit shows that the disputes between the parties have been settled. It is also stated that the sexual relationship was with her consent and volition. 7. Taking into account all the facts and circumstances of the case, I am of the view that arrest of the petitioner as such may not be required in the present case. 8. In Shanu v. State of Kerala (2000 (3) KLT 452), it was held that the Magistrate has power to grant bail to the accused in a case under clauses (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 to the accused. The decision in Shanu's case was followed in B.A.No.789 of 2005 and in Crl.M.C.No.3036 of 2004. In Ali v. State of Kerala (2000 (2) KLT 280), this Court took the view BA 5701/2011 4 that in cases of similar nature, there is no bar to the Magistrate to exercise the power under Section 437 of the Code of Criminal Procedure and grant bail. 9. 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 Session. 10. In the peculiar facts and circumstances of the case, I am of the view that a direction as given in Shanu's case should be given in the present case as well. Accordingly, the Bail Application is disposed of in the following manner: i) The petitioner shall appear before the Judicial Magistrate of the First Class I, Perinthalmanna, within a period of two weeks from today and apply for bail. ii) If the petitioner complies with the above direction, the BA 5701/2011 5 learned Magistrate shall grant bail to him on such conditions as may be deemed fit and proper in the facts and circumstances of the case. Such conditions will include a condition that the petitioner shall co-operate with the investigating agency and another condition that the petitioner shall undergo the potency test. It should also be made a condition that if necessary, petitioner shall accompany the investigating officer to Mangalore and other places were the investigation is required to be conducted. K.T.SANKARAN JUDGE csl