IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4425 of 2007()
1. M.P.GOPALAKRISHNAN,S/O.PARAMESWARAN NAIR
... Petitioner
2. MANOJ, M.R., S/O. RAMU,
3. SHIJU K.T., KOTTAIKKAL VEEDU,
Vs
1. STATE OF KERALA REP.BY THE
... Respondent
2. SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.ANAND
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :24/07/2007
O R D E R
R.BASANT, J
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B.A.No.4425 of 2007
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Dated this the 24th day of July, 2007
ORDER
Application for anticipatory bail. The petitioners (accused 1 to
3) face allegations in a crime registered, inter alia, under the
Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act. All
other offences are admittedly bailable. The crux of the allegations is
that the accused persons (Accused Nos.2 and 3) along with some
others were members of an unlawful assembly which in prosecution of
their common object intentionally insulted the defacto complainant, a
person belonging to the Scheduled Caste in a public transport vehicle.
In public view the defacto complainant was allegedly insulted by the
accused. Admittedly, the 1st accused was not present at the scene.
The learned counsel for the petitioners submits that the allegations
are being raised vexatiously as a counter blast because of the
pendency of some other proceedings. Anticipatory bail may, in these
circumstances, be granted to the petitioners, it is contended.
2. The learned Public Prosecutor opposes the application
with the help of Section 18 of the Scheduled Castes/Scheduled Tribes
(Prevention of Atrocities) Act. The said provision clearly proscribes
entertainment of an application for anticipatory bail when the offence
alleged includes the one punishable under the Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act.
B.A.No.4425 of 2007 2
3. The learned counsel for the petitioners, in these
circumstances, submits that, at any rate, in so far as the 1st accused is
concerned, on the allegations raised, the charge under the Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act cannot lie at
all. He was not present at that time when the alleged insult was
traded by the defacto complainant. I find merit in that submission by
the learned counsel for the petitioners.
4. In so far as the other accused are concerned also, I am
satisfied that they can appear before the learned Magistrate and seek
regular bail. It has been repeated several times by this Court that the
mere fact that the offence under Section 3 of the Scheduled
Castes/Scheduled Tribes (Prevention of Atrocities) Act is triable by the
Special/Sessions Court is no reason for the Magistrate to abdicate his
jurisdiction under Section 437 Cr.P.C. The decisions in Ali v. State
of Kerala [2000(2) KLT 280], Shanu v. State of Kerala [200(3) KLT
452], Krishnakumar v. State of Kerala [2005(1) KLD (Cri.42)] and
P.P.Kader v. State of Kerala [2005(1) KLD (Cri.250)] make the
position crystal clear.
5. In the result, this application for anticipatory bail is
allowed in part. The following directions are issued under Section
438 Cr.P.C.
B.A.No.4425 of 2007 3
i) The petitioners shall appear before the learned Magistrate
having jurisdiction at 11 a.m on 31.07.07. The learned Magistrate
shall consider their applications for bail on merits, in accordance with
law and expeditiously – on the date of surrender itself;
iii) While considering the bail application of the 1st accused,
the learned Magistrate shall reckon that no allegation under Section 3
(1)(x) of the Scheduled Castes/Scheduled Tribes (Prevention of
Atrocities) Act has been raised against him and accordingly consider
his application for bail on merits.
(R.BASANT, JUDGE)
rtr/-