IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5873 of 2009()
1. RAJESH T.K.,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.SHAJI THOMAS PORKKATTIL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :14/10/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 5873 OF 2009
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Dated this the 14th day of October, 2009
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.244 of 2009 of Erattupetta Police Station.
2. The offence alleged against the petitioner is under Section
3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act.
3. It would appear that the de facto complainant filed a petition
before the District Collector, Kottayam alleging commission of
various acts by several persons against her. The District Collector
forwarded the petition to the District Superintendent of Police,
directing the latter to register a crime under the provisions of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act. It is submitted by the learned counsel for the petitioner and
agreed to by the learned Public Prosecutor that the District Collector
has no jurisdiction to issue such a direction to the District
Superintendent of Police.
B.A. NO. 5864 OF 2009
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4. The allegation is that the petitioner called the de facto
complainant by her caste name.
5. I have gone through the case diary. In the petition
submitted to the District Collector, several allegations were made
and it was alleged that the persons mentioned therein committed the
offence. It is submitted by the learned Public Prosecutor that on
investigation it was found that the allegations made against all those,
except the petitioner, are false.
6. Learned counsel for the petitioner submitted that the case
is a foisted one against him. The de facto complainant tried to make
several persons as accused persons. It was revealed that the case
put forwarded by her was false. It is also submitted by the learned
counsel for the petitioner that if the petitioner is arrested and
detained, he would be put to great hardship and that he would be
subjected to mental and physical harassment.
7. Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act provides that an application under
Section 438 would not be maintainable in a case where offence
B.A. NO. 5864 OF 2009
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under the Act is alleged. Learned counsel for the petitioner relied on
the decisions in Shanu v. State of Kerala (2000 (3) KLT 452),
(2005(1) KLD 250 (B.A.No.789 of 2005), Krishnakumar v. State of
Kerala (2005 (1) KLD 42 (Crl.M.C.No.3036 of 2004) and also the
decision in Ali v. State of Kerala (2000 (2) KLT 280).
8. In Shanu v. State of Kerala (2000(3) KLT 452), a learned
single Judge of this Court held that the Magistrate has power to
grant bail to the accused in cases coming under clause (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.
9. The decision in Shanu’s case was followed by another
learned single Judge in B.A.No.789 of 2005 and by another learned
single Judge in Krishnakumar v. State of Kerala (2005 (1) KLD 42
(Crl.M.C.No.3036 of 2004). In 2000(2) KLT 280, it was held that
there is no bar for the Magistrate to grant bail in such cases on the
basis of the general principles enunciated under Section 437 of the
Code of Criminal Procedure.
B.A. NO. 5864 OF 2009
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10. 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.
11. In view of the decisions referred to above and also taking
note of the facts and circumstances of the case, I am of the view that
the petitioner can be permitted to appear before the learned
Magistrate having jurisdiction. It is also proper to issue a direction to
the learned Magistrate to grant bail to the petitioner.
12. Accordingly, the petitioner is permitted to appear before
the Court of the Judicial Magistrate of the First Class, Erattupetta,
within a period of ten days from today and move for regular bail. If
the petitioner appears and files a bail application, the learned
Magistrate shall release the petitioner on bail on such conditions as
the learned Magistrate may deem fit and proper to impose.
The Bail Application is disposed of as above.
(K.T.SANKARAN)
Judge
ahz/