IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN TUESDAY, THE2D DAY OF SEPTEMBER201411TH BHADRA, 1936 Crl.MC.No. 5040 of 2014 ---------------------------------- CRIME NO. 995/2013 OF NEDUMKANDAM POLICE STATION , IDUKKI ---------------- PETITIONER(S): ---------------------- USHAKUMARI M. NAIR, PUTHENVEETTIL HOUSE, NEDUMKANDOM, IDUKKI DISTRICT. BY ADVS.SMT.A.K.PREETHA SRI.M.R.RAJESH RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON0209-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PJ Crl.MC.No. 5040 of 2014 ---------------------------------- APPENDIX PETITIONERS' ANNEXURES ---------------------------------------- ANNEXURE I: ATRUE COPY OF THE COMPLAINT LODGED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, NEDUMKANDAM DATED317/13. ANNEXURE II: ATRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.995/13 OF NEDUMKANDAM POLICE STATION. RESPONDENTS' ANNEXURE ---------------------------------------- NIL. / TRUE COPY / P.S. TO JUDGE PJ K.RAMAKRISHNAN, J ================== CRL.M.C.NO.5040 OF2014===================== Dated this the 2nd day of September, 2014 ORDER
--------- This is an application filed by the petitioner seeking direction to the Magistrate under section 482 of Code of Criminal procedure.
2. It is alleged in the petition that the petitioner has been arrayed as sole accused in Crime No.995/2013 of Nedumkandom police station alleging commission of offence under section 3(1) (10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and section 23 of the Juvenile Justice Act (Care and Protection) 2000. The petitioner was working as the Warden of the Centralised Sports Hostel run by the Kerala Sports Council at Nedumkandom. One Abhijith M.Mahesh a member of Scheduled Caste, was an inmate of the hostel.
3. The allegation was that he had abused him by calling his caste name knowing that he belongs to Scheduled Caste in front of his coaches and other inmates of the hostel and that he had also harassed him and thereby he committed the aforesaid offence. But in fact, he had not committed any offence. He had only taken disciplinary action against the victim boy and a complaint has been lodged to the Coach of the CRL.M.C.NO.5040 OF20142 Abhijith regarding his misbehaviour. Fearing disciplinary proceedings a false complaint has been lodged by D.Maheshkumar the father of the child Abhijith alleging that he had committed the aforesaid offence. In view of the bar under section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, he cannot move for anticipatory bail. If he surrenders before the court below, since the offence alleged is triable by Sessions Court, the court below will not grant bail. So the petitioner has no other remedy except to approach this court seeking the following relief:- "to allow the Criminal Miscellaneous Case and issue a direction to the Court of Judicial First Class Magistrate, Nedumkandom to consider the bail application of the petitioner on the same day and to enlarge the petitioner on bail on such terms and conditions this Honourable Court deems fit and proper on the facts and circumstances of the case".
4. Heard the counsel for the petitioner and the learned public prosecutor.
5. The counsel for the petitioner submitted that, this court has in several decisions observed that merely because offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act have been incorporated though it may interdict the power of the court grant anticipatory bail will not prevent the magistrate to consider the bail application and grant bail in appropriate cases. So he wanted a direction to be issued in that regard. CRL.M.C.NO.5040 OF20143 6. The application was opposed by the public prosecutor.
7. It is an admitted fact that the petitioner has been arrayed as accused in Crime No.995/2013 of Nedumkandam police station registered on the basis of complaint given by the father of the victim boy alleging commission of offence under section 3(1)(10) of Scheduled Castes and Scheduled tribes (prevention of Atrocities) Act 1989 and section 23 of the Juvenile Justice (Care and Protection) Act, 2000. It is true that once the offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 included the power of the court to grant anticipatory bail is barred under section 18 of the said Act. But this court in several decisions including a decisions reported in (Shanu V State of Kerala) (2000 KHC651 and Prem Shameer Vs State of Kerala) (2010(4) KLT620, held that though the involving power under section 438 to grant anticipatory bail is barred under section 18 of the Act, that will not prevent the magistrate to grant bail in appropriate cases though the offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act included which are exclusively tried by Special Court under the Act namely Principal Sessions court. It is for that court to consider the gravity of offence and manner in which the offence CRL.M.C.NO.5040 OF20144 was committed etc and pass appropriate orders. So, this court feels that the petition can be disposed of as follows:- The Judicial First Class Magistrate, Nedumkandom, is directed to consider and dispose of the bail application if any filed by the petitioner on his surrender before that court, considering the dictum laid on in the above decisions cited (Supra) and dispose of the bail application on the date of filing itself after hearing the Assistant Public Prosecutor of that court in accordance with law. With the above directions and observations, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately. Sd/- K.RAMAKRISHNAN, JUDGE R.AV