High Court rejected a second bail application for non-surrender despite earlier direction. It referred to Supreme Court precedent holding that non-compliance may be alleviated if prima facie elements of an offence under SC/ST Act exist, remanding bail disposal to Magistrate.
Application disposed of; bail to be considered by Magistrate on fresh evidence.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938
Bail Appl..No. 5393 of 2016 ()
CRIME NO. 404/2016 OF THOPUMPADY POLICE STATION, ERNAKULAM DISTRICT.
PETITIONER(S)/ACCUSED:
1. NORBIN PINHEIRO,
2. ANTONY SHAJI, AGED 45 YEARS, S/O LATE AUGUSTINE, RESIDING AT #16/511, ANDITHARA HOUSE, KARUVELIPADY, COCHIN - 682 005.
3. BENNY.A, AGED 47 YEARS, S/O LATE MICHAEL, RESIDING AT OURNEST HOUSE, #16/515A, RC ROAD, KARUVELIPADY, COCHIN - 682 005.
BY ADVS.SRI.JOHN MATHEW (THEREZHATH) SRI.JOBIN JOHN
RESPONDENT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.LALIZA.T.Y
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
mbr/
P.UBAID, J.
ORDER
The petitioners herein seek pre-arrest bail on the apprehension of arrest in connection with Crime No. 404 of 2016 of Thopumpady Police Station, registered under Section 506(1) of the Indian Penal Code, and Section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act.
B.A.No. 5393 of 2016
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petitioners now rely on a decision of the Honourable Supreme Court in Vilas Pandurang Pawar and Another v. State of Maharashtra and Others (2012 (8) SCC 795) wherein, the honourable Supreme Court has held that in cases where the complaint and other prosecution records do not even prima facie reveal the offence alleged under the SC/ST Act, the request for anticipatory bail can be entertained by the High Court, despite the bar under Section 18 of the SC/ST Act. Here the position is different. Whether the alleged offence was committed within public view, or whether the accused did so with the object of abusing or humiliating a member of scheduled caste on the ground that he/she belongs to such a caste, is a matter for decision on trial. What is required prima facie is whether the victim was abused on the ground that he or she belongs to a particular caste. Here, there is such allegation in the complaint. Anyway, this Court has observed in clear terms that the accused can well be granted bail even if the required
B.A.No. 5393 of 2016
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elements are there, if the accused deserve bail. Let these aspects be considered by the learned Magistrate, when application for bail comes.
With the above observation, this application is
disposed of.
Sd/- P.UBAID
JUDGE
ds
//True copy//
P.A. to Judge
3 issues framed by the court
Whether a second bail application should be entertained when the accused failed to surrender as directed in the earlier bail order.
Whether the High Court can grant anticipatory bail under Section 438 Cr.P.C. in cases involving allegations under the SC/ST Act.
Whether the conditions under Section 18 of the SC/ST Act may be bypassed when the prima facie evidence is sufficient for appellate consideration.
Colour shows how this judgement treated each authority
Vilas Pandurang Pawar and Another v. State of Maharashtra and OthersReferred¶27
(2012 (8) SCC 795) · Who else cites this
4 provisions across 3 enactments
NORBIN PINHEIRO
ANTONY SHAJI
BENNY.A
STATE OF KERALA
P.UBAID
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
