IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 Bail Appl..No. 4321 of 2008() ----------------------------- CRIME NO.493/2008 OF PATHANAMTHITTA POLICE STATION PETITIONERS/ACCUSED: ------------------------------------- 1. JOSE VARGHESE, THAYIL, CHENNEERKARA P.O., PATHANAMTHITTA. 2. NIKHIL JOSE, SON OF JOSE, THAYIL, CHENNEERKARA P.O., PATHANAMTHITTA. BY ADV. SRI.BIJI MATHEW RESPONDENT: COMPLAINANT: ------------------------- STATE OF KERALA, REPFESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------------- Bail Application No.4321 of 2008 --------------------------------------- Dated this the 11th day of July, 2008 O R D E R Petition for anticipatory bail. 2. According to the prosecution, a crime is registered under Sections 341, 323, 506(1) and 34 IPC against the petitioners in respect of an incident occurred on 9.6.2008. The crime is registered on 18.6.2008. The first and the second petitioners are the father and the son. 3. According to learned counsel appearing for petitioners, the first petitioner is working as Senior Grade Assistant Accounts officer in KSEB and the second petitioner is a third year Engineering Student. The first petitioner's wife (mother of the second petitioner) Smt.Shiny Jose is the Mandalam Secretary of the Kerala Mahila Sangham which is working against “liquor mafia” and she actively participated in the drive against illicit liquor vending in the locality. A Dharna was proposed to be held on 3.6.2008 by the Sangham, as revealed by Annexure A2 notice wherein Smt. Shiny Jose has an important role. BA No.4321/08 2 4. Annexure A3 is a mass petition given by the people of the locality to the District Collector referring to the sale of illicit liquor in the locality and the protest of the people of the locality against it. The details of the persons who are engaged in sale of illicit liquor are also given in the said document which is marked as Annexure A3. Because of this move made by the Sangham against illicit liquor vending, there were several attacks on Smt.Shiny Jose. Annexure A5 and Annexure A6 show that there were two complaints in connection with the same. Smt. Shiny Jose was allegedly assaulted and she gave a complaint to the Circle Inspector and a copy of the complaint is Annexure A5. An FIR was registered in respect of an attack made on the house of the petitioners, as revenge against the action taken by Sangham on 15.6.2008 and the copy is Annexure A6. Annexure A7 is an extract of various papers referring to the attack on the Mahila Sangham Mandalam Leader Smt. Shiny Jose and her house by the “liquor mafia”. 5. Learned counsel for the petitioners submitted that after registration of the crime as per Annexure A6 in respect of BA No.4321/08 3 the attack made on petitioners' house on 15.6.2008, the present crime is registered on 18.6.2008, alleging offences under Section 3(1) of the SC and ST (Prevention of Atrocities) Act and Sections 341, 323 and 506(1) of IPC. The provision under SC and ST (Prevention of Atrocities) Act is included only with a view to refuse anticipatory bail, since there is a bar under Section 18 to grant anticipatory bail in cases involving offences falling under said Act. The defacto complainant is one of the accused in the crime registered on the basis of the complaint made by the petitioners as per Annexure A6. It is also submitted by the learned counsel for the petitioner that the second petitioner had sustained a fracture in a road traffic accident and he was under treatment. His extraordinary fixator was removed only on 7.6.2008 and following physiotherapy was advised thereafter for two weeks and this is evidenced by Annexure A1 medical certificate. It is submitted that it is not possible for A1 to commit any offence as alleged because of his physical state and the present case is an absolutely false one. No injury is caused to the defacto complainant also. BA No.4321/08 4 6. This petition is opposed. Learned public prosecutor submitted that offence under SC and ST (Prevention of Atrocities) Act is involved and hence, there is a bar to grant anticipatory bail. It is also pointed out that the petitioners are involved in other three crimes and hence, considering the antecedents of the petitioners also, the prayer may not be granted. 7. On hearing both sides, and considering the submissions made on both sides and the various documents produced, the circumstances under which the present crime is registered and the various other facts and circumstances discussed above, I find that it is only fit and proper to grant anticipatory bail to petitioners. Section 18 of SC and ST (Prevention of Atrocities) Act becomes bar for granting anticipatory bail in cases where the court is fully satisfied that an offence under SC and ST (Prevention of Atrocities) Act is made out. The mere inclusion of a provision under SC and ST (Prevention of Atrocities) Act may not justify refusal of anticipatory bail because, such a refusal will encourage misuse of BA No.4321/08 5 the provision. Hence, the following order is passed: The petitioners shall be released on bail, in the event of their arrest, on their executing bond for Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the arresting officer. The petition is allowed. K.HEMA, JUDGE csl