IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 Bail Appl..No. 9142 of 2011() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.4993/2011 CRIME NO.664/2011 OF THIRUVALLA POLICE STATION PATHANAMTHITTA DISTRICT .................... PETITIONERS/ACCUSED : ----------------------- 1. SUBHASH, S/O.PRABHAKARAN, MODIYIL HOUSE, WEST OTHERA. 2. SUNIL, S/O.PRABHAKARAN, MODIYIL HOUSE, WEST OTHERA. BY ADV. SRI.T.P.PRADEEP SRI.S.SREEDEV RESPONDENT: RESPONDENT/COMPLAINANT. -------------------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.9142 of 2011 ---------------------------------------------- Dated this the 10th day of November, 2011 ORDER 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.664 of 2011 of Thiruvalla Police Station, Pathanamthitta District. 2. The offences alleged against the petitioner and other accused are under Sections 294(b), 353 and 506(i) 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 allegation is that on 14.5.2011, the defacto complainant, a postwoman who belongs to a scheduled caste, was abused by the accused using obscene language and also assaulted her with intent to dishonour or outrage her modesty. 4. The petitioners are the children of accused No.3. Accused No.3 had filed Bail Application No.4993 of 2011 for anticipatory bail. That bail application was disposed of by the Bail Appln.No.9142/2011 : 2 : order dated 04th July, 2011. While dealing with that bail application, the facts of the case were stated in detail in paragraph Nos.4 and 5 of the order dated 04th July, 2011 which read as follows:- “4. The learned counsel for the petitioner submitted the following with reference to Annexures A1 to A3 produced along with the Bail Application: The Registration Certificate of the new car belonging to the petitioner was sent by registered speed post from the Regional Transport Office to the petitioner on 3.12.2010. However, he did not receive the RC Book. The RC Book was not received back in the Regional Transport Office as well. The petitioner made a complaint dated 8.3.2011 in this regard. On getting information from the Regional Transport Office that the article was sent by registered post, the petitioner met the defacto complainant and enquired about the receipt of the article. She replied that the RC Book was not received in the post office. She also enquired later with the petitioner as to whether the petitioner got any information. After waiting in vain for about two weeks, the petitioner met the postmaster, who stated that the RC Book was not received in the post office. The petitioner was directed to give a complaint to the Postal Department. The petitioner submitted a complaint to the Postal Superintendent, Bail Appln.No.9142/2011 : 3 : Thiruvalla. On the next day of filing that complaint, the defacto complainant came to the house of the petitioner and stated that the RC Book was handed over to the wife of the petitioner. The petitioner was directed to inspect the records in the post office. Thereupon the petitioner and his wife went to the post office and they were told that the article was received by the petitioner's wife. However, they were not shown the signature of the petitioner's wife in any of the documents. Later, when the petitioner enquired with the defacto complainant about the receipt or otherwise of the RC Book, she challenged the petitioner that he would not be able to do anything against her. Pointing out these facts, the petitioner submitted Annexure A1 representation to the Postal Superintendent, Thiruvalla on 29.3.2011. Annexure A2 letter dated 28.4.2011 was received by the petitioner from the office of the Superintendent of Post Office, Thiruvalla, stating that it was proposed to settle the claim of the petitioner by sanctioning eligible compensation. On 18.4.2011, the petitioner submitted Annexure A3 petition to the Circle Inspector of Police, pointing out that on verification of the records, after submitting the complaint to the Postal Superintendent, it was found that the signature of the petitioner's wife was not seen in the records. The petitioner expressed his apprehension in Annexure A3 that the defacto complainant might Bail Appln.No.9142/2011 : 4 : have either sold or pledged the RC Book belonging to the petitioner. 5. The First Information Statement was recorded in the present case on 16.5.2011. The learned counsel for the petitioner submitted that the allegation made in the present case should be considered in the light of Annexures A1 to A3. It is submitted that these documents would clearly show that the present case was foisted against the petitioner.” 5. The offences alleged against the petitioners include an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In Shanu v. State of Kerala (2000 (3) KLT 452), this Court held that the Magistrate has got power to grant bail to the accused even in cases under clauses (i) to (xv) of Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In that case, the learned Magistrate was directed to grant bail to the accused. The decision in Shanu's case was followed by another learned single Judge in 2005 (1) KLD 250 (B.A.No.789 of 2005) and in 2005 KHC 2058 (Krishna Kumar v. State of Kerala). In Ali v. State of Kerala (2000 (2) KLT 280), it was held that there is no bar for the Magistrate for granting bail in Bail Appln.No.9142/2011 : 5 : such cases on the basis of the general principles enunciated in Section 437 of the Code of Criminal Procedure. In Sukumari v. State of Kerala (2001 (1) KLT 22), it was held that Section 437 of the Code of Criminal Procedure does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a Court of Sessions. 6. After having considered the facts and circumstances of the case, I am of the view that this Bail Application can be disposed of by directing the petitioners to appear before the Judicial Magistrate of the First Class, Thiruvalla within two weeks and move for regular bail. When such an application is filed, the learned Magistrate shall grant bail to the petitioners on such conditions as may be deemed fit and proper. The Bail Application is disposed of as above. K.T.SANKARAN, JUDGE skj