Anticipatory bail is an extraordinary remedy, granted only in exceptional cases, requiring careful judicial discretion based on the facts and circumstances of each case.

The application is filed under 482 of the Bharatiya Nagarik Suraksha Sanhita , 2023, for an order of pre-arrest bail.

2. The petitioners are the accused 1 to 3 in Crime No.1177/2024 of the Kunnicode Police Station, Kollam, which is registered against six accused persons for allegedly committing the offences punishable under Sections 189(2), 191(2), 191(3, 296(b), 115(2), 118(1) and 118(2) r/w Section 190 of the Bharatiya Nyaya Sanhita, 2023.

3. The crux of the prosecution case is that: on 11.10.2024, at 15:00 hours, six accused persons, in prosecution of their common intention, had restrained the de facto complainant, and the second accused hit him with a stone wrapped in a towel, the third accused attacked him with an iron rod on his face and right hand and the first accused exhorted to all the other accused persons to murder the de facto complainant.

Then, the accused 4 to 6 fisted and stamped the de facto complainant and he suffered grievous injuries.

Thus, the accused have committed the above offences.

4. Heard; Sri. K.Siju, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik., the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners’ culpability in the crime.

The Investigating Officer has deliberately incorporated Section 118 (2) of the BNS to see that the petitioners are arrested and incarcerated. The CCTV footage clearly reveal that it is not the petitioners who attacked the de facto complainant. The petitioners are ready to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

6. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioners are habitual offenders. He also stated that it was the second accused who assaulted the de facto complainant with a stone wrapped in a towel and the third accused attacked the de facto complainant with an iron rod and he suffered grievous injuries. The learned Public Prosecutor made available the treatment certificate dated 6.11.2024 issued by the Government Medical College Hospital, Thiruvananthapuram of the de facto complainant, to substantiate that he had suffered a fracture on the proximal fibula and also contusions on different parts of his body. He stated that the custodial interrogation of the accused 2 and 3 is necessary and recovery is to be effected for the proper investigation of the crime. If the petitioners are granted an order of pre-arrest bail, it may hamper the investigation. However, he did not dispute the fact that the specific overt act is attributed against the first accused, who only exhorted the other accused to murder the de facto complainant.

7. The prosecution allegation is that, the petitioners along with the accused 4 to 6 had wrongfully restrained the de facto complainant and the second accused assaulted him with a stone wrapped in a towel and the third accused hit him with an iron rod on his head and he suffered grievous injuries. On an appreciation of the treatment records referred to above, prima facie, I find the involvement of the accused 2 and

3. Nonetheless, that is a matter to be investigated and decided after trial. The specific overt act against the first petitioner is that he only exhorted the other accused to murder the de facto complainant.

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.