This is an application filed by the third accused in Crime No.524/2014 of Irinjalakkuda police station for anticipatory bail under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. The case of the prosecution in nutshell was that the defacto complainant belonging to Scheduled Caste was made to execute a document in favour of the third accused, who is the petitioner herein, with the connivance of other accused persons making him to believe that it is a loan document but later on that pretext, a sale deed has been executed and property was deprived from the defacto complainant and thereby all of them have committed the offences punishable under Sections 107, 120 B, 415, 423, 468 and 463 of the Indian Penal Code and Section 3(1)(iv)(v)(xv) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereinafter referred to as 'the Act').
3. The counsel for the petitioner submitted that the petitioner has not committed any offence and in fact he is a bonafide purchaser of the property from the defacto complainant for valuable consideration and it was a registered document and he is in possession of the property from 2012 onwards. Only now the defacto complainant filed a private complaint after two years of the execution of the document and he had not taken any steps to set aside the documents as well. On the other hand, the petitioner filed a suit for recovery of possession of the property from the defacto complainant and obtained interim injunction restraining him from constructing any building in the property.
4. The application was opposed by the Public Prosecutor on the ground that Section 18 of the Act is a bar for granting anticipatory bail and so the application is not maintainable.
5. The counsel for the defacto complainant, who has been impleaded in the case submitted that he has been made to believe that it is a security document and the document was executed as a sale deed under the misconception that it is a security document and now they are trying to dispossess him from the property and he belonging to Scheduled Caste.
6. Herd both sides.
7. It is an admitted fact that Crime No. 524/2014 of Irinjalakuda Police station was registered by the Irinjalakuda Police on the basis of the private complaint filed by the defacto complainant, who has been made as an additional respondent in this application against the petitioner and others alleging offences under Sections 107, 120 B, 415, 423, 468 and 463 of the Indian Penal Code and Section 3(1)(iv)(v)(xv) of the Act, which was forwarded to the Police for investigation by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure. Section 18 of the Act bars the courts from entertaining an application for anticipatory bail if there were allegations of commission of offence under the provisions of that Act has been alleged. The Hon'ble Supreme Court also in the decision reported in Vilas Pandurang Pawar v. State of Maharashtra {2012 (4) KLT SN 28, (Case No28)} held that Section 18 of the Act creates a specific bar in the grant of anticipatory bail if there are allegations in the complaint regarding commission of the offence under the provisions of that Act.
8. It is not necessary at this stage to consider the genuineness of the allegations or whether that will attract an offence or not under the Act which is a matter to be considered at the time of evidence. But, however, when an allegation of commission of offence under the above Act has been mentioned in the complaint in view of the dictum laid down in the decision of the Supreme Court, the bar under Section 18 of the Act will be attracted and the accused in such cases are not entitled to get anticipatory bail.
9. But, however, this Court in the decision reported in Shanu v. State of Kerala (2000 (3) KLT 452) held that merely because offence under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is alleged, the jurisdiction of the Magistrate to grant bail is not curtailed and the court has to consider the allegations in the complaint and gravity of the offence and exercise the jurisdiction to grant bail in such cases. Same view has been reiterated in the decision reported in Prem Shammer v. State of Kerala (2010 (4) KLT 620). So, the petitioner is not entitled to get anticipatory bail in the above case in view of the bar under Section 18 of the above said Act. But it is made clear that merely because the provisions of the Act has been incorporated and it is triable by the Principal Sessions Judge as a special court under the Act is not a ground for the Magistrate not exercising the power under Sections 437 and 439 of the Code of Criminal procedure in appropriate cases to grant bail to the accused in such cases. So the petitioner is not entitled to get anticipatory bail and the application is liable to be rejected.
So the application is rejected. If the petitioner surrenders before the Magistrate court and moves for regular bail, then the learned Magistrate is directed to consider the dictum laid down in Shanu's and Prem Shameer's cases (cited supra) and dispose of the bail application after hearing the Assistant Public Prosecutor of that court in accordance with law as far as possible on the date of filing the application itself.
Sd/-
K. RAMAKRISHNAN, JUDGE.
cl /true copy/ P.S to Judge