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2000 DIGILAW 413 (KER)

Shanu v. State of Kerala

2000-08-09

K.A.MOHAMMED SHAFI

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Judgment :- K.A. Mohamed Shafi, J. 'This M.C. is filed by the accused in Crime No. 392/2000 registered by the Manjeri Police alleging offences punishable under S.324 r/w 34 of I.P.C. and S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to direct the Judicial First Class Magistrate-I, Manjeri to enlarge the petitioners on bail in the event of their surrender before the court and moving for bail. 2. The above crime is registered against the petitioners on the basis of the F.I. Statement given by one Chandran alleging that on 18.7.2000 the petitioners who do not belong to Scheduled Caste or Scheduled Tribe in furtherance of their common intention assaulted him and intentionally insulted with intent to humiliate him who is a member of the Scheduled Caste community within public view. 3. The petitioners have contended that in fact the defacto complainant in this case had attacked the 1st petitioner and crime No. 393/2000 is registered by the Manjeri Police against him on the basis of the F.I. Statement given by the 1st petitioner while undergoing treatment in the hospital alleging offences punishable under Ss.341,323 and 324 of I.P.C. The petitioners have also contended that in view of the incorporation of the offence punishable under S.3(1)(x) of the S.C. & S.T. (Prevention of Atrocities) Act, they are prevented from applying for anticipatory bail due to the bar under S.18 of the Act making S.438 of the Cr.P.C. not applicable to the persons committing offences punishable under any of the provisions of the S.C. & S.T. (Prevention of Atrocities) Act. They have further contended that since the cases in which offence punishable under the provisions of S.C. & S.T. (Prevention of Atrocities) Act is incorporated, are triable by the Special Court, which is the Sessions Court, the J.F.C.M.' s Courts are not granting bail to the persons accused of the offence punishable under the provisions of the S.C. & S.T. (Prevention of Atrocities) Act either when they are arrested and produced or surrendered before the court. Therefore, they have submitted that a direction should be issued by this Court to the learned Magistrate to grant bail to the petitioners since the J.F.C.M. has got jurisdiction to grant bail in cases wherein offences are not punishable with death or imprisonment for life. 4. S.437 of the Cr.P.C. reads as follows: "437. Therefore, they have submitted that a direction should be issued by this Court to the learned Magistrate to grant bail to the petitioners since the J.F.C.M. has got jurisdiction to grant bail in cases wherein offences are not punishable with death or imprisonment for life. 4. S.437 of the Cr.P.C. reads as follows: "437. When bail may be taken in case of non-bailable offence - (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail but - (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; xxx xxxx xxxx xxxxx xxx x xxx Therefore, it is clear from the above provision of the Cr.P.C. that the Magistrate is competent to release an accused, either appeared or brought before him, if the offence alleged is not punishable with death or imprisonment for life. 5. Though the offences punishable under the provisions of the S.C. & S.T. (Prevention of Atrocities) Act are made triable by the Special Court presided over by a Sessions Judge, considering the peculiar nature and circumstances under which those cases are registered and tried with regard to atrocities perpetrated against the downtrodden and weaker sections of the society, the offences punishable under the 15 subsections under sub-s.(1) of S.3 of the Act are punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The offences punishable under sub-s.(2) of S.3 of the Act relate to graver offences. In this case as already noted the offence alleged against the petitioners is only punishable under S.3(1)(x) of the S.C. & S.T. (Prevention of Atrocities) Act, for which the maximum sentence prescribed is imprisonment for five years and with fine. 6. The offences punishable under sub-s.(2) of S.3 of the Act relate to graver offences. In this case as already noted the offence alleged against the petitioners is only punishable under S.3(1)(x) of the S.C. & S.T. (Prevention of Atrocities) Act, for which the maximum sentence prescribed is imprisonment for five years and with fine. 6. In the decision in Satyan v. State of Kerala (1981 K.L.T. 606) this Court considered the question whether the refusal to grant bail by the J.F.C.M. in an offence punishable under S.326 of I.P.C., on the ground that the offence is punishable with imprisonment for life, is justified or not and held that so long as the offence punishable under S.326 is triable by a Magistrate of the First Class, there is no reason why it should be viewed differently in the matter of granting bail from an offence punishable under S.420 of I.P.C. for which the punishment extends to imprisonment for 7 years or any other non-bailable offence for which the punishment is a term of imprisonment. 7. In a subsequent decision reported in Chellappan v. State of Kerala (1987 (1) K.L.T. 435) this Court relying upon the above decision reported in 1981 K.L.T. 606 held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative under S.437(1) of the Cr.P.C. 8. In that case the question that arose for consideration was whether the Second Class Magistrate had jurisdiction to grant bail to the accused in Crime No. 16/87 registered by the Aranrnula Police alleging offences punishable under Ss.143, 147, 148, 332, 225, 307 and 427 r/w 149 I.P.C. and S.3(2)(c) of the Prevention of Damage to Public Property Act with certain conditions. The State filed Crl. M.P. 32/87 before the Sessions Court seeking to cancel the bail granted by the learned Magistrate and the Sessions Court allowed the application and cancelled the bail granted to the accused. That order was challenged by the accused before this Court in that Crl. M.C. In para 3 of the order a single judge of this Court has observed as follows: "In passing the order the learned Sessions Judge held that the Magistrate has overstepped his jurisdiction and has violate! That order was challenged by the accused before this Court in that Crl. M.C. In para 3 of the order a single judge of this Court has observed as follows: "In passing the order the learned Sessions Judge held that the Magistrate has overstepped his jurisdiction and has violate! the mandatory provisions contained in S.437(1) of the Cr.P.C. The view taken by the learned Sessions Judge is wrong in the light of the decision of this Court in Satyan v. State of Kerala (19M KLT 606) and also an unreported decision in Crl M.C. No. 442 of 1984. In both these decisions, it was held that the Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative. In Crl. MC. No. 442 of 1984 the offence against the accused was one under S.4361.P.C., which was exclusively triable by the Court of Sessions. Therefore the view taken by the learned Magistrate that he has powers to grant bail in the instant case is correct." 9. In the above decision this Court has held that even though offence punishable under S.307 of I.P.C., exclusively triable by the Sessions Court was also alleged, the Magistrate's Court has got jurisdiction to grant bail under S.437(1) of the Cr.P.C. since the offence is not punishable with death or imprisonment for life in the alternative. 10. As already noted, the 15 offences enumerated under sub-s.(1) of S.3 of the S.C. and S.T. (Prevention of Atrocities) Act are punishable with maximum imprisonment of five years and with fine, though the offences are triable by the Special Court, which is the Sessions Court. Therefore, applying the principles enunciated in the decisions of this Court referred to above, it is clear that the J.F.C.Ms Court has got jurisdiction to grant bail to the persons accused of the offence punishable under any of the sub-els, (i) to (xv) of sub-s.(1) of S.3 of the Act. 11. In this case, the offence alleged against the petitioners is punishable under S.324 of I.P.C. and S.3(1)(x) of the S.C. and S.T. (Prevention of Atrocities) Act. Therefore, it follows that the J.F.C.M.'s Court has got jurisdiction to grant bail to the accused under S.437(1) of the Cr.P.C. irrespective of the fact that the case is triable by the Special Court, which is the Court of Session. Therefore, it follows that the J.F.C.M.'s Court has got jurisdiction to grant bail to the accused under S.437(1) of the Cr.P.C. irrespective of the fact that the case is triable by the Special Court, which is the Court of Session. Hence the learned Magistrate is directed to enlarge the petitioners on bail on appropriate conditions he deems necessary, in case the petitioners surrendered or arrested and produced before the court and moved for bail. The Crl. M.C. is allowed as above.