IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 Bail Appl..No. 5403 of 2011 CRIME NO.55 OF 2011 OF POTHUKAL POLICE STATION, MALAPPURAM. PETITIONERS/ACCUSED -------------------------------------- 1. ANADATHIL BABY, S/O.SAMUEL, ANADATHIL HOUSE, POOKATTUMANNA P.O., CHUNGATHARA, MALAPPURAM DISTRICT. 2. BIJU, S/O.PHILIPOSE, ANADATHIL HOUSE, POOKATTUMANNA P.O., CHUNGATHARA, MALAPPURAM DISTRICT. 3. SHOUKATH, S/O.UNNI HYDRU, PULATH HOUSE, POOKOTTUMANNA, CHUNGATHARA, MALAPPURAM DISTRICT. 4. MUHAMMED RAFI @ KUNHIPPA, S/O.SOOPY, VALLIKKADAN HOUSE, POOKOTTUMANNA P.O., CHUNGATHARA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: STATE -------------------- THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, POTHUKAL POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 5403 OF 2011 A ------------------------------------------------------ Dated this the 11th day of July, 2011 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, 2, 4 and 3 respectively in Crime No.55 of 2011 of Pothukal Police Station, Malappuram District. 2. The offences alleged against the petitioners are under Sections 143, 148, 447 and 427 read with Section 149 of the Indian Penal Code and Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is that on 13.4.2011, the accused persons cut open a pathway taking a portion of the property belonging to the de facto complainant. The petitioners apprehend arrest in connection with the crime. It is submitted that the ingredients of Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are not made out in the case. It is also submitted that if BAIL APPL. NO.5403 OF 2011 A :: 2 :: the petitioners surrender before the Magistrate's Court, it is likely that the petitioners would be remanded to judicial custody as the offence under Section 3(1)(iv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is also included. It is also pointed out that though the offence was allegedly committed on 13.4.2011, it was reported to the police only on 20.4.2011. 4. 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 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 BAIL APPL. NO.5403 OF 2011 A :: 3 :: the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a Court of Sessions. 5. 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, Nilamboor 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 ahz/