IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 Bail Appl..No. 428 of 2010 CRIME NO.12 OF 2010 OF PONNANI POLICE STATION, MALAPPURAM DISTRICT PETITIONER: ACCUSED: ---------------------------- KUNHIMOHAMMED, S/O.MUHAMMAD, CHOZHIVALAPPIL HOUSE, P.O.KALADI, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE, PONNANI POLICE STATION, MALAPPURAM DISTRICT. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 428 OF 2010 ------------------------------------------------------ Dated this the 4th day of February, 2010 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.12 of 2010 of Ponnani Police Station, Malappuram District. 2. The offences alleged against the petitioner are under Sections 447, 341 and 324 of the Indian Penal Code and Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is that on 3.1.2010, while the accused was trying to remove the boundary stone on the boundary of the de facto complainant's property, he questioned the same. At that time, the accused challenged the de facto complainant as to what he would do if the stone is removed. The de facto complainant was called by his caste name. It is also alleged that the mother of the de facto complainant was also abused by the petitioner by calling her the caste name. The de facto complainant belongs to a scheduled caste. B.A. NO. 428 OF 2010 :: 2 :: 4. The learned counsel for the petitioner submitted that on 3.1.2010, the de facto complainant, his mother and sister had attacked the petitioner and Crime No.11 of 2010 was registered by Ponnani Police in respect of that incident for the offences under Sections 341, 324 and 506 read with Section 34 of the Indian Penal Code. It is also pointed out that the petitioner claims a pathway leading from the public road to his property and there is a civil dispute between the petitioner on the one side and certain others on the other side. It is submitted that the petitioner had filed O.S.No.88 of 1995 on the file of the Court of the Munsiff-Magistrate of Ponnani against two persons and that suit was decreed as per the judgment and decree dated 28.10.1996. The learned counsel submits that the appeal filed against that judgment and decree was also dismissed. Referring to Annexure A2 plan submitted by the Commissioner in O.S.No.88 of 1995, the learned counsel submitted that the property belonging to the de facto complainant is at the beginning from where the pathway commences. It is also pointed out that there is a dispute between the de facto complainant and the petitioner in respect of the pathway. B.A. NO. 428 OF 2010 :: 3 :: 5. The offences alleged against the petitioner in the present case, under the Indian Penal Code, are bailable. The only non- bailable offence alleged against the petitioner is under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides that in respect of an offence under the Act, Section 438 of the Code of Criminal Procedure will not apply. 6. 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. B.A. NO. 428 OF 2010 :: 4 :: In the light of the decisions referred to above, the Bail Application is disposed of as follows: 1) The petitioner shall surrender before the Court of the Judicial Magistrate of the First Class, Ponnani within two weeks from today and apply for bail. 2) If the petitioner complies with the above direction, the learned Magistrate shall grant bail to the petitioner on such conditions as may be deemed fit and proper to be imposed. (K.T.SANKARAN) Judge ahz/