IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Bail Appl..No. 6931 of 2009() ------------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33509/2006 Dated 24/08/2007 CRIME NO. 929/2009 OF CHERANELLOOR POLICE STATION .................... PETITIONER/1ST ACCUSED : ------------------------------------------ JAMES, AGED 50 YEARS, S/O. V.J. JOSEPH, VETTUSSERY HOUSE, BOAT JETTY ROAD, VADUTHALA, KOCHI-23. BY ADVS. SRI.GEO PAUL SRI.SANU MATHEW RESPONDENT/COMPLAINANT : -------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, CHERANELLOOR, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6931 of 2009 ------------------------------------ Dated this the 8th day of December, 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 accused No.1 in Crime No.929/2009 of Cheranelloor Police Station. 2. The offences alleged against the petitioner are under Sections 452, 354, 506(ii) and 294(b) read with Section 34 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The defacto complainant filed a petition dated 04.11.2009 to the Inspector General of Police, Central Range, which was forwarded to the S.I. of Police, Cheranelloor to register a case. Accordingly, the crime was registered for the aforesaid offences. 4. The learned Public Prosecutor submitted that the case is now being investigated by the Assistant Commissioner of Police, Ernakulam. 5. I have perused the various averments in the petition filed by the de facto complainant. After stating the incident of calling the de facto complainant by her caste name and also B.A. No. 6931 of 2009 2 stating that she was abused in filthy language, the prayer in the application is to restore the pathway which was allegedly used by the de facto complainant. It is also alleged that the accused persons caught hold of the de facto complainant by her neck. 6. The case of the petitioner is the following: The wife of the petitioner owned an extent of 12.5 cents on the eastern side of a river. On the northern side of the property belonging to the wife of the petitioner, the property in the possession of the de facto complainant is situated. The petitioner alleges that the said land is a Puramboke land, which is in the unauthorised occupation of the defacto complainant. The petitioner's wife filed O.S. No.793/2006 on the file of the Court of the Munsiff of Ernakulam against the defacto complainant and her husband for an injunction restraining them from reclaiming any portion of the river lying on the western side of the plaintiff's property. It was alleged that the defendants attempted to reclaim a portion of the river for forming pathway leading from the property in the possession of the defendants. It is stated that a commissioner inspected the property and it was found that a portion of the plaintiff's property was encroached upon by the defendants. Hence the B.A. No. 6931 of 2009 3 plaint was amended and a prayer for recovery of possession was added. The suit was decreed by the judgment dated 22.11.2008. It is stated that an appeal was filed by the defendants and that the appeal was also dismissed. 7. Petitioner's wife filed W.P.C.No. 33509/2006 against the de facto complainant, her husband and others praying for appropriate action on Ext.P6 representation filed by the petitioner's wife before the District Collector and Tahsildar. That Writ Petition was disposed of as per Annexure 2 judgment dated 24.08.2007. This court held that the orders passed by the Civil Court are to be respected and obeyed. The Writ Petition was filed and it was disposed of at a time when the suit was pending. 8. The case of the petitioner is that in spite of the decree of the Civil Court and in spite of the judgment in the Writ Petition, the de facto complainant and her husband continued the harassment against the petitioner and his wife. The petition before the Inspector General of police was filed in such an attempt. The petitioner submitted Annexure 3 representation dated 10.11.2009 to the City Police Commissioner narrating the entire facts. In Annexure 3, it is stated that the petitioner was B.A. No. 6931 of 2009 4 being threatened to be made an accused alleging offences under the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act so that he could be detained in jail for a few days. 9. On a consideration of the facts and circumstances of the case, I am of the view that the petitioner is entitled to be released on bail. 10. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that Section 438 of the Code of Criminal Procedure would not be applicable in the case of an offence under the Act. 11. 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 Tribes (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 B.A. No. 6931 of 2009 5 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. For the aforesaid reasons, the Bail Application is disposed of as follows: 1. The petitioner shall surrender before the Court of the Judicial Magistrate of the First class-II, Ernakulam within a period of ten days from today and apply for Bail. 2. If the petitioner complies with the above direction, the Judicial Magistrate of the First Class-II, Ernakulam shall grant bail to the petitioner on such conditions as may be deemed fit and proper to be imposed by the learned Magistrate. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE ln