IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 Bail Appl..No. 5174 of 2011() ----------------------------------------- CRIME NO.343/2011 OF NALLALAM POLICE STATION, KOZHIKODE DISTRICT -------------------------------- PETITIONERS/ ACCUSED -------------------------------------- 1. SAKKEENA RIYAS ,W/O.RIYAS PULIKKALAKATH HOUSE,THARAMMEL, SURABHI, OLAVANNA. 2. AYSHA, W/O. SAIDALAVI, RESIDING DO..DO.. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S)/COMPLAINANT/STATE ------------------------------------------------------------ 1. THE SUB INSPECTOR OF POLICE NALLALAM POLICE STATION.PIN- 673 001. 2. STATE REP BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/07/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts K.T.SANKARAN, J. --------------------------------- B.A. No. 5174 OF 2011 --------------------------------- Dated this the 5th day of July, 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.343 of 2011 of Nallalam Police Station, Kozhikode District. 2. The offence alleged against the petitioners are under Section 294(b) of the Indian Penal Code and Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The de facto complainant is the neighbour of the petitioners. The second petitioner is the mother of the first petitioner. It is stated that the second accused is aged 84 years. It is alleged that on account of a quarrel between the petitioners and their neighbour Sparnisha, wife of Riyas, the latter fainted. When the children of Sparnisha cried out, the B.A. No. 5174 OF 2011 2 de facto complainant and her neighbours went to the house of Sparnisha. The de facto complainant and others reported the matter to the member of the Panchayat. It is alleged that the petitioners were not happy with the de facto complainant on account of that incident. The allegation is that the petitioners abused the de facto complainant in filthy language and called her by caste name. The de facto complainant belongs to a Scheduled Caste. 4. The learned counsel for the petitioners submitted that the basic ingredients to attract Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the Act') are not satisfied in the present case. The counsel pointed out that there is no allegation that the petitioners intentionally insulted the de facto complainant with intent to humiliate her. The counsel also pointed out that even the allegations would not indicate that the de facto complainant was insulted by calling the caste name, but she was described by her caste name. The counsel submitted that in spite of the bar under Section 18 of the Act, anticipatory bail can be granted in these circumstances. B.A. No. 5174 OF 2011 3 5. The offences alleged against the petitioner 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 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. B.A. No. 5174 OF 2011 4 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-V, Kozhikode 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. cms