IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 Bail Appl..No. 5687 of 2009() ----------------------------- CRIME NO.709/2009 OF KAYAMKULAM POLICE STATION PETITIONER/ACCUSED NO.1 ------------------------------------------- SUNIL KUMAR D.,AGED 34 YEARS, S/O. DASARATHAN,CHIRAYIL HOUSE, NJAKKNAL POST, KRISHNAPURAM, ALLEPPEY DISTRICT, PIN-690533. BY ADV. SMT.C.G.PREETHA RESPONDENT(S): COMPLAINANT/STATE -------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/01/2010, ALONG WITH BA NO. 6989 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.Nos.5687 & 6989 of 2009 --------------------------------------------- Dated this the 11th day of January, 2010 ORDER Bail Application No.5687 of 2009 is filed by accused No.1 in Crime No.709 of 2009 of Kayamkulam Police Station for anticipatory bail under Section 438 of the Code of Criminal Procedure. Bail Application No.6989 of 2009 is filed by accused Nos.3 to 7 in that crime for anticipatory bail. 2. The offences alleged against the petitioners are under Sections 143, 147, 148, 149, 323, 324, 326, 342, 427 and 308 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 7(1)(b) of the Arms Act. 3. The prosecution case is that on 9.9.2009, the accused persons invited the de facto complainant to the house of accused No.1 in order to settle another dispute. Accused Nos.1 and 2 also followed the de facto complainant to the house of accused No.1. When they reached the house of accused No.1, the matter was talked over. There arose a quarrel between the parties. At that time, accused No.1 attacked the de facto complainant with a BA Nos.5687 & 6989/2009 2 sword. The de facto complainant sustained grievous hurt as a result of the attack with the sword. It is alleged that the other accused persons had beaten the de facto complainant with hands. It is also alleged that as the de facto complainant fell down as a result of sustaining injuries, he was tied to a pillar in the house of accused No.1 and accused Nos.3 to 7 beat him with hands. 4. When Bail Application No.5687 of 2009 came up for hearing on 19th November, 2009, an order was passed directing the petitioner to appear before the investigating officer on 28th and 29th November, 2009. When Bail Application No.6989 of 2009 came up for hearing on 9th December, 2009, an order was passed directing the petitioners to appear before the investigating officer on 14th and 15th December, 2009. Those directions were given on the basis of the submission made by the learned counsel for the petitioners and the learned Public Prosecutor that the injuries sustained by the de facto complainant are not very serious in nature. The discharge certificate in relation to the de facto complainant was not available in the CD file at that time. BA Nos.5687 & 6989/2009 3 5. Today, when the case came up for hearing, the learned Public Prosecutor submitted that the discharge certificate shows that the de facto complainant had sustained grievous injuries. Therefore, the matter was heard in detail on the merits. 6. Taking into account the facts and circumstances of the case, the nature and gravity of the offence and the allegations levelled against accused No.1, I do not think that he is entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. If anticipatory bail is granted to the first accused, it would adversely affect the proper investigation of the case. The learned Public Prosecutor also submitted that the first accused is involved in Crime No.686 of 2009 of the same police station as well. It is also submitted that a tension prevails in the locality due to the incident and if anticipatory bail is granted to the first accused, it would aggravate the tension. 7. However, the case of accused Nos.3 to 7 stands on a different footing. The overt acts alleged against them are not attributable to the grievous injuries sustained by the de facto complainant, though Section 149 IPC is also alleged. Moreover, BA Nos.5687 & 6989/2009 4 the names of accused Nos.3 to 7 are not mentioned in the FI statement. In the facts and circumstances of the case, I am of the view that it is not necessary to have the custodial interrogation of accused Nos.3 to 7. However, Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act bars an application under Section 438 of the Code of Criminal Procedure. 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 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 the peculiar facts and circumstances of the case, I am of the view that a direction as given in Shanu's case should BA Nos.5687 & 6989/2009 5 be given in the present case as well. Accordingly, Bail Application No.6989 of 2009 is disposed of in the following manner: i) Accused Nos.3 to 7 shall appear before the Judicial Magistrate of the First Class, Kayamkulam, within a period of ten days from today and apply for regular bail. ii) If accused Nos.3 to 7 (petitioners in Bail Application No.6989 of 2009) comply with the above direction, the Judicial Magistrate of the First Class, Kayamkulam shall grant bail to them on such conditions as the learned Magistrate may deem it fit and proper to impose, in the facts and circumstances of the case. For the aforesaid reasons, Bail application No.5687 of 2009 is dismissed and Bail Application No.6989 of 2009 is allowed to the extent indicated above. K.T.SANKARAN, JUDGE csl