ORDER

Dated this the 04^th day of October, 2024 This 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 4^th accused in Crime No.1018/2024 of the Kundara Police Station, Kollam, which is registered against the five accused persons, for allegedly committing the offences punishable under Sections 143, 147, 294(b), 341, 323, 324, 325 and 326 r/w Section 149 of the Indian Penal Code.

3. The essence of the prosecution case is that; on 11.06.2024, at around 21:00 hrs., while the defacto complainant and his friends were travelling on a motorcycle, the accused, in prosecution of their common intention, had dangerously overtaken the motorcycle, and when the defacto complainant and his friends questioned them, the accused persons chased them in a car and intercepted their vehicle and thereafter, the 1^st accused hit the defacto complainant with a helmet, the 2^nd accused fisted him on his face and the 4^th accused fisted him on his nose and he suffered a nasal bone fracture. Thus, the accused have committed the above offences.

4. Heard; Sri.Ajay S Koshy, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. There is no materials to substantiate the petitioner’s culpability in the crime. The Investigating Officer has deliberately incorporated Section 326 of the IPC to see that the petitioner is arrested. The petitioner is a law abiding citizen without any criminal antecedents. By order dated 09.08.2024 in B.A.No.5671/2024, this Court has granted accused 1 and 2 an order of pre-arrest bail. The petitioner claims parity with the accused 1 and 2. Therefore, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. He submitted that there is a specific overt act attributed against the petitioner, who fisted the defacto complainant on his nose and he suffered a nasal bone fracture. He made available the treatment records of the defacto complainant issued by the District Hospital, Kollam, to substantiate that the defacto complainant suffered a nasal bone fracture. He stated that this Court has specifically observed in the order in B.A.No.5671/2024, that there is a specific overt act against the petitioner. The petitioner’s custodial interrogation is necessary for the proper and full fledged investigation in the crime. Hence, the application may be dismissed.

7. On an analysis of the materials on record, it is quite evident that there is a specific overt act alleged against the petitioner, who allegedly fisted the defacto complainant on his nose and he suffered a nasal bone fracture. The said allegation prima facie stands corroborated by the treatment records referred to above.

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 matter of course.

Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679).

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24.We have already held that the power to grant anticipatory bail is an extra