IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 Bail Appl..No. 8023 of 2011() ----------------------------- CRIME NO.1691/2011 OF THRIPUNITHURA HILL PALACE POLICE STATION PETITIONER : ACCUSED NO.2 ---------------------------------- JAYA PRAKASH P.K, AGED 24 YEARS, S/O.KESAVAN,POOLPARAMPIL HOUSE, GUDDIYAR, KARARA P.O.AGALI,PALAKKAD DISTRICT. BY ADV. SRI.P.V.DILEEP RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. Addl. R2: 2. VIJAYAN.T.K., AGED 56 YEARS S/O.KUTTAPPAN, THONNAMAKKIL VEEDU CHITHRAPPUZHA, IRUMPANAM, THRIKKAKKARA VILLAGE, ERNAKULAM DT. IMPLEADED AS PER THE ORDER IN C.M.APPL.NO.7878/2011 DATED 8.12.2011. ADV. SRI.SYAM J SAM FOR R2 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.8023 of 2011 --------------------------- Dated this the 8th day of December, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.1691 of 2011 of Tripunithura Hill Palace Police Station. 2. The offences alleged against the petitioner are under Sections 363, 366 and 376 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The prosecution case is the following : Accused Nos.1 and 2 are the driver and cleaner of a lorry. They enticed two girls, below the age of 16 years, and took them to Palakkad and thereafter to a house of the relative of the petitioner. The accused and the girls resided in that house. It is alleged that the accused persons sexually exploited the girls. BA 8023/11 2 4. One of the victims belongs to a Scheduled Caste. It is submitted that the girl whom the petitioner had allegedly raped does not belong to Scheduled Caste and therefore, the bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act does not apply in the present case. 5. The learned counsel for the petitioner as well as the learned counsel appearing for the de facto complainant submitted that the disputes between the parties have been settled and it was decided between the petitioner and the parents of the victim that the petitioner would marry the victim. It was also decided to conduct the betrothal ceremony on a near date. 6. I do no think that this is a case where anticipatory bail can be granted. If the petitioner is arrested or if the petitioner surrenders before the Magistrate's Court having jurisdiction, the above facts can be pointed out for consideration by the learned Magistrate. The learned counsel for the petitioner submitted that if the petitioner is either produced or if the petitioner surrenders before the Magistrate's Court, the petitioner would be remanded BA 8023/11 3 to judicial custody since the offences are exclusively triable by a court of Session. 7. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was held that the power under Section 437 of the Code of Criminal Procedure can be exercised even in cases where the offence is triable exclusively by the Court of Session. With the above observations, the Bail Application is closed. K.T.SANKARAN JUDGE csl