Anticipatory bail is an extraordinary privilege, granted only in exceptional cases, emphasizing the need for caution to prevent miscarriage of justice.

ORDER

Dated this the 10 th day of September, 2024 The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (for short ‘ BNSS ’), for an order of pre-arrest bail.

2. The petitioner is the 1 st accused in Crime No.483/2024 of the Pozhiyoor Police Station, Thiruvananthapuram, which is registered against three accused persons for allegedly committing the offences punishable under Sections 118(1) and 118(2) read with Section 3(5) of the Bharatiya Nyaya Sanhitha , 2023 (for short ‘BNS’).

3. The crux of the prosecution case is that: on 04.08.2024, at around 22:00 hours, the accused 1 to 3, in furtherance of their common intention, had wrongfully restrained the defacto complainant, and the 1 st accused assaulted him with an iron rod and he suffered a nasal bone fracture. The accused 2 and 3 also hit the defacto complainant with wooden reapers. Thus, the accused have committed the above offences.

4. Heard;

Sri.Sasthamangalam S Ajithkumar, the learned Senior Counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

5. The learned Senior Counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. In fact, it was the defacto complainant, who is a history-sheeter, who assaulted the petitioner and the accused 2 and 3. The petitioner and the accused 2 and 3 have all suffered grievous injuries. By Annexure 7 order, the 3 rd accused has been granted an order of pre-arrest bail. The petitioner had only exercised his right of private defence. The Investigating Officer has deliberately incorporated Section 118(2) to see that the petitioner is incarcerated. The petitioner is a law abiding citizen without any criminal antecedents.

The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. He submitted that there is a specific overt act alleged against the petitioner, who had assaulted the defacto complainant with an iron rod and he suffered a nasal bone fracture. He referred to the accident register cum wound certificate of the defacto complainant, issued by the General Hospital, Neyyattinkara, dated 05.08.2024, to substantiate that the defacto complainant suffered a nasal bone fracture. He stated that the petitioner ’s custodial interrogation is necessary and recovery is to be effected for the full fledged investigation of the crime. If the petitioner is granted an order of pre- arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed.

7. The prosecution case is that, the petitioner along with the accused 2 and 3 had wrongfully restrained the defacto complainant and the petitioner hit him with an iron rod and he suffered a nasal bone fracture. Prima facie, the said accusations stand corroborated by the accident register cum wound certificate referred to above. Whether the petitioner acted in exercise of his right of private defence or not, is a matter to be investigated and ultimately decided after trial. Merely because the petitioner has also suffered an injury, the same is not a reason to grant him an order of pre-arrest bail.

8. In Srikant Upadhyay v. State of Bihar [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines:

“8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a