SAJU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein seeks pre arrest bail under Section 438 of the Code of Criminal Procedure on the apprehension of arrest in connection with Crime No.683 of 2016 of the Kuttampuzha Police Station, registered under Sections 294(b), 323, 506(ii), 427, 452, 143 and 148 of the Indian Penal Code, and Section 3(1)(v)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He is the 7th accused in the crime.

(2.) It is submitted that the accused Nos.3 to 5 are on regular bail. The main offences alleged against the petitioner and others are bailable under the law. On the ground that the victim of offence is a member of Scheduled Caste, the police incorporated the Section 3(2)(v) of the SC/ST Act. The said section does not create any substantive offence. It is only a provision regarding the sentence for the offences included in the schedule incorporated by amendment in 2015. It is submitted by the learned counsel that the complainant in this case is not in fact a member of Scheduled Caste. Annexure-A certificate issued from the Village Officer, Kuttampuzha will have to be examined. This crime does not involve any offence punishable under the SC/ST Act. The effect of application of Section 3(2)(va) of the Act is only that appropriate sentence will have to be imposed, if the accused is found guilty. That apart, the section has no legal effect. Anyway, in the present circumstances where the main offences are bailable under the law, the petitioner can very well approach the court below, and seek regular bail. There is no case of house trespass with preparation to cause hurt, in this crime. What is revealed, is only an instance of house trespass with intention to commit an offence. It may come only under Section 451 IPC, which is bailable under the law. The main offences are under Sections 294(b), 323, 506(ii) and 427 IPC. Those are bailable under the law. Just because, Section 3(2)(v)(a) was incorporated by the police, the main offences will not become non-bailable, and bail cannot be denied to the petitioner. Thus, giving liberty to the petitioner to approach the court below for regular bail, this application is disposed of.