IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7477 of 2009()
1. ABHED KUMAR, AGED 35 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY PUBLIC
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/01/2010
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 7477 OF 2009
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Dated this the 19th day of January, 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.464 of 2009 of Malayinkeezhu Police Station,
Thiruvananthapuram.
2. The offences alleged against the petitioner are under
Sections 354, 452 and 326 of the Indian Penal Code and Sections 3
(1)(viii) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.
3. The de facto complainant filed a complaint before the Court
of the Chief Judicial Magistrate, Thiruvananthapuram on 7.12.2009
in respect of the alleged incident on 16.10.2009. The complaint was
forwarded to the police for investigation under Section 156(3) of the
Code of Criminal Procedure. Thereafter, the crime was registered
for the aforesaid offences on 8.12.2009.
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4. The accused was a last grade servant in the Court of the
Judicial Magistrate of the First Class – IV (mobile),
Thiruvananthapuram. While forwarding the complaint to the police,
the Chief Judicial Magistrate directed the Sub Inspector of Police to
file an affidavit as to why no crime was registered on the basis of the
petition alleged to have been submitted by the de facto complainant.
5. The de facto complainant stated that she belongs to a
scheduled caste. It is alleged that on 16.10.2009 at 9.30 PM, the
petitioner forcefully entered into the house of the de facto
complainant and attacked the mother of the de facto complainant.
The mother of the de facto complainant sustained injuries. It is also
alleged that the petitioner caught hold of the hands of the de facto
complainant.
6. The learned counsel for the petitioner submitted that on
16.10.2009, the petitioner was attacked by Ramesh and Sivaprasad,
the brothers of the de facto complainant, as well as by one Rajan
and the petitioner sustained injuries on his head, eyebrow and other
parts of the body. Crime No.387 of 2007 was registered in respect
of that incident under Sections 341, 324, 294(b), 506(ii) and 308
B.A. NO. 7477 OF 2009
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read with Section 34 of the Indian Penal Code, against Rajesh,
Sivaprasad and Rajan. After completing investigation, charge sheet
was also filed in that case.
7. I have gone through the case diary in Crime No.464 of
2009. No independent witness has supported the case put forward
by the de facto complainant. The wound certificate to show that the
mother of the de facto complainant had sustained injuries is also not
seen in the case diary file.
8. The de facto complainant belongs to the carpenter
community (Asari). The father of the de facto complainant, who
passed away, belonged to a scheduled caste. The petitioner does
not belong to a scheduled caste.
9. On going through the case diary, it is seen that neither the
de facto complainant nor her mother disclosed to Rajesh and
Sivaprasad, the brothers of the de facto complainant, about the
incident on their reaching home during night. It is also not stated
that the mother of the de facto complainant was taken to the hospital
immediately after the incident. Why the incidents which took place
B.A. NO. 7477 OF 2009
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on 16.10.2009 were not reported to the children of the injured
(brothers of the de facto complainant) is not disclosed. The
neighbours who were examined by the investigating officer did not
support the case put forward by the de facto complainant.
10. While dealing with an application for anticipatory bail, it is
not necessary to consider the merits of the case put forward by
either side and to arrive at any finding. At the same time, the
petitioner has raised a contention that the case was foisted against
him and the offences under the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act have been incorporated only to
see that he does not get bail from the Magistrate’s Court and that he
would be precluded from filing an application for anticipatory bail.
11. Section 18 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act provides that in respect of the
offences under the Act, Section 438 of the Code of Criminal
Procedure would not apply.
12. 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
B.A. NO. 7477 OF 2009
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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.
13. In Sukumari v. State of Kerala (2001 (1) KLT 22) it was
held that the power under Section 437 can be exercised even in
cases where offence is triable exclusively by the Court of Sessions.
14. In the peculiar facts and circumstances of the case, I am
of the view that it is necessary to protect the interests of the
petitioner by passing an order to grant bail to him.
The Bail Application is disposed of as follows:
1) The petitioner shall surrender before the Court of the
Chief Judicial Magistrate, Thiruvananthapuram, within
two weeks and apply for bail.
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2) If the petitioner complies with the above direction, the
learned Chief Judicial Magistrate shall grant bail to the
petitioner on such conditions as may be deemed fit and
proper in the facts and circumstances of the case.
(K.T.SANKARAN)
Judge
ahz/